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A  TREATISE 


—  ON  — 


AMERICAN  ADVOCACY 


Based  upon  tlie  Standard  Englista  Treatise,  Entitled  Hints  on 
Advocacy,  by  Ricliard  Harris. 


All  new  matter  added  being  snch  as  conforms  peculiarly  to  American 

practice,  thus  making  tlie  worlc  more  valuable  to  the  practitioner 

and  student  of  this  country  than  the  English  edition  upon 

nhich  it  is  founded,  while  the  best  features  of  the  English 

book  have  been  retained;  more  than  one-half  of  the 

present  volume  being  new  and  original  matter. 


ENLARGED,  COMPLETELY  REVISED  AND  AMERICANIZED. 


—  BY — 

ALEXANDER  H.  ROBBINS. 

EDITOR  OF  THE  CENTRAL  LAW  JOURNAL. 


ST.  LOUIS:   ' 
CENTRAL  LAW  JOURNAL  COMPANY. 
IBM. 


Copyright  1904, 

by 

Central  Law  Journal  Company. 


T 


ST.  LOUIS : 
Printed  bt  Central  Law  Journal  Company. 


In  recognition  of  his  pre-eminent  exemplifica- 
tion of  the  pvincipleii  of  true  advocacy^  I  am 
honored  in  the  permission  and  opportunity 
given  to  me  to  dedicate  thix  volume  to  the 

HON.  FREDERICK  W.  LEHMANN, 

of  the  City  of  St.  Louis^  that  incomparable 
advocate^  excelling  in  all  the  graces  of  advocacy^ 
uniformly  courteous  to  witnesses  and  opposing 
counsel,  mifliiichiiig  in  the  discharge  of  his 
duty  to  his  client,  and  upholding  at  all  times 
the  majesty  of  the  law  and  the  high  ideals  of 
the  profession  of  mhich  he  is  so  worthy  and 
acceptable  a  member. 


/^-7D3t(i 


INTRODUCTION  TO  THE  AMERICAN  EDITION. 


To  the  wear}',  storm-tossed  mariner,  seeking  the 
safety'  of  the  harbor,  nothing  is  so  welcome,  so  cheer- 
ing, so  encouraging,  as  a  glimpse  of  the  rays  of  a 
friendly  lighthouse  or  the  warning  sounds  of  the  fog- 
horns. So,  also,  without  stretching  extravagantly 
the  simile^  there  comes  to  the  struggling  professional 
man,  buried  in  his  books  or  overwhelmed,  sometimes, 
by  the  drudgery  and  the  dry  details  of  his  practice, 
a  sense  of  buoyant  hope  and  a  thrill  of  encourage- 
ment as  his  eyes  for  a  moment  catch  glimpses  of  the 
high  eminences  of  his  profession  and  behold,  on  the 
summit,  men  who,  like  himself,  have  struggled,  even 
as  he  is  now  struggling,  to  reach  those  places  where 
they  now  sport  themselves  at  will,  conscious  of  their 
power  and  enjoying  the  supreme  confidence  of  the 
people.  To  reach  this  eminence  is  the  advocate's 
highest  ambition;  to  assist  him  to  do  so  is  the  highest 
purpose  of  this  volume. 

The  profession  of  law  sustains  the  most  personal 
relation  to  the  individual  of  all  professional  or  busi- 
ness relations  of  life.  The  supreme  characteristic  of  a 
great  lawyer,  therefore,  is  not  so  much  an  expansion 
of  the  brain  as  an  enlargement  of  the  heart,  a  wide 
and  generous  sympathy,  a  nervous  system  carefully 
attuned  to  all  the  passions  and  prejudices  in  life,  a 


IV  INTRODUCTION. 

man  that  not  only  knows  human  nature,  but  has  an 
appreciable  quantity  of  human  nature  in  him;  a  man, 
indeed,  whom,  when  his  client  seeks  advice,  he  finds 
not  merely  a  cold-blooded  jurist,  a  profound  oracle  of 
^iG  law,  but  a  man  strong  in  his  sympathies  and  full 
of  resources  for  evading  or  escaping  difficulty ;  re- 
sources that  come  not  altogether  from  law  books,  but 
from  the  book  of  experience,  which  he  has  so  dili- 
gently studied,  both  in  his  own  life  and  the  lives  of 
others, — a  man  who,  when  he  stands  before  a  court  or 
jury,  stands  not  in  his  own  shoes,  holding  out  his 
client  at  arm's-length  so  as  not  to  be  contaminated 
by  him  or  by  his  affairs,  but  an  advocate  in  every 
sense  of  that  term,  standing  in  the  place  of  his  client, 
taking  upon  himself  the  burden  of  his  case,  and  en- 
wrapping himself  so  intensely  in  the  feelings  of  his 
client  that  words  burn  on  his  lips  as  he  denounces 
the  deceiver,  and  tears  start  to  his  eyes  as  he  relates 
the  sorrows  and  griefs  of  his  client  under  the  heel  of 
the  oppressor;  a  man,  indeed,  who  struggles  in  de- 
fense of  the  life,  fortune  and  honor  of  his  client  as  if 
it  were  his  own.  Such  is  the  truly  great  lawyer,  as 
distinguished  from  the  jurist.  The  qualifications  that 
go  to  make  up  his  success  cannot  be  learned  out  of 
the  text-books  of  the  law — they  come  only  to  the  man 
who  flirts  with  human  nature;  who  experiences,  as 
far  as  possible,  all  the  passions  of  the  heart  and  all 
the  hopes,  pleasures  and  disappointments  of  life;  who 
communes  with  the  great  exemplars  of  his  profession 
and  carefully  studies  their  lives,  their  methods  of 
work  and  their  great  efforts  at  forensic  pleading. 

The  work  of  Mr.  Richard  Harris,  upon  which  this 
work  is  founded,  is  well  known  to  the  profession  and 
universall}^  recognized  as  the  greatest  book  of  its 
kind  published.  It  had  two  defects:  First,  its  ar- 
rangement Was  not  logical,  nor  was  the  matter  easily 


INTRODUCTION.  T 

accessible;  second,  the  American  reader  found  much 
in  it  which  was  useless  to  him,  and  much  that  was  not 
in  it  of  which  he  very  much  desired  to  be  informed. 
To  overcome  these  two  defects  and  thus  make  the  vol- 
ume as  near  perfect  as  possible,  we  have  made  a  thor- 
ough and  systematic  revision  of  this  standard  work. 
We  have  first  gone  through  Mr.  Harris' pages  and 
cut  out  all  useless  matter  and  such  as  had  reference 
only  to  the  practice  as  it  existed  in  England.  Sec- 
ondly'-, we  have  re-read  the  pages  and  subdivided  all 
the  matter  into  short  sections  with  appropriate  sub- 
headings. Thirdly,  we  have  taken  these  sections  and 
arranged  them  in  chapters,  under  significant  titles. 
Fourthly,  we  have  taken  the  chapters,  as  thus  pre- 
pared, and  arranged  them  in  logical  order.  At  this 
point,  while  we  had  culled  the  best  of  Mr.  Harris' 
work,  we  had,  as  a  result,  but  a  meager  contribution 
to  the  subject  of  American  Advocacy.  We,  therefore, 
proceeded,  first,  to  compose  four  new  and  entirely 
original  chapters  on  themes  which  had  received  ab- 
solutely no  attention  in  Mr.  Harris'  work  and  very 
little  attention  in  any  other  work  on  the  subject  of 
Advocacy  that  has  come  to  our  attention.  These  four 
new  chapters  are  as  follows:  Chapter  I,  Office  Work 
and  Preparation  for  Trial;  Chapter  XIII,  Briefs,  Ar- 
guments and  Methods  of  Speaking;  Chapter  XIV, 
Legal  Ethics;  Chapter  XV,  Ethics — Compensation 
and  Advertising.  We  then  took  up  the  work,  as 
thus  completely  outlined,  subheaded  and  revised, 
and  carefully  reviewed  each  chapter  and  section, 
changing  the  language  to  more  intelligible  expres- 
sions of  the  rules  of  ad  vocacy  as  applicable  to  Amer- 
ican practice,  composing  many  new  and  entirely  orig- 
inal sections,  interpolating  where  the  original  text 
seemed  to  demand  more  explanation,  and  annotating 


VI  INTRODUCTION. 

throughout  with  appropriate  quotations  and  refer- 
ences. 

We  believe  that  the  work,  as  thus  reconstructed 
and  revised,  will  become  an  invaluable  assistant  to 
every  lawyer,  especially  the  j^oung  practitioner,  serv- 
ing to  keep  fresh  in  their  minds  the  great  principles 
of  advocacy,  upon  a  proper  observance  of  which  all 
true  success  at  the  bar  so  vitall}^  depends. 

Alexander  H.  Robbins. 

St.  Louis,  Mo. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 
PREPARATION  FOR  TRIAL. 


Page. 

§  1.  Common  Sense      /       .                      .           .           .           .1 

2.  Knowledge  of  Human  Nature  .            .            .           ••          2 

3.  Consultation  and  the  Writing  of  Legal  Opinions    .  .          3 

4.  Listening  to  the  Client's  Complaint  ...          4 

5.  Sifting  the  Client's  Story        .....  5 

6.  Arranging  and  Marshalling  the  Evidence  Before  Trial    .  6 

7.  The  Theory  of  a  Case  and  its  Importance    ...  7 

8.  Discovering  and  Determining  the  Legal  Outlines  .  .        10 

9.  Preparation  of  Pleadings        .  .            .            .            .12 

10.  Interviewing  and  Coaching  Witnesses          .  .            .14 

11.  Interviewing  the  Adversary  Party — Interrogatories  .        IG 
13.  What  to  do  With  Weak  or  Dangerous  Points  in  the  Line 

of  Battle         .......        18 

13.  "Reading  Up"  the  Law  of  the  Case  .  ...        19 

14.  Preparation  of  Address  to  the  Jury  .  .            .            .20 

15.  The  Three  Cardinal  Requisites  ....        21 

CHAPTER  II. 

OPENING  PLAINTIFF'S  CASE. 

Page. 
§  16.    Confidence  in  His  Case  .....        23 

17.  Narration  not  Argument  in  Opening  Statement      .  .        24 

18.  Anticipating  Defendant's  Case  .  .  .24 

19.  Redundancy  of  Expression  in  Opening  Statement  .        25 

20.  Ornamentation  and  Illustration  in  Opening  Statement  26 

21.  Order  and  Arrangement  of  Facts  In  Opening  Statement  .        26 

22.  Moderation  in  Opening  Statement     .  .  .  .28 

23.  Length  of  Opening  Statement  ....        30 


Vlll 


TABLE   OF  CONTENTS. 


CHAPTER  III, 


OPENING  DEFENDANT'S  CASE. 

Pag«. 

24.  General  Rules    .......  32 

25.  When  and  Where  to  Open  the  Attack  .  .  .33 

26.  Effect  of  Argument  in  Demolishing  Plaintiff's  Case          .  34 

27.  Use  of  Plaintiff's  Witnesses  to  Prove  Defendant's  Case    .  34 

28.  Force  of  Eloquence  in  Defendant's  Opening  Speech         .  35 

29.  Misstatements  and  False  Representations  by  Defendant  .  36 

30.  Arrangement  of  Facts  With  Regard  to  Probabilities         .  36 

31.  Proper  and  Artistic  Arrangement  of  Evidence        .            .  37 

32.  Answering  Exaggerated  or  Improbable  Evidence             .  37 

33.  Effect  of  Defendant  Praising  His  Own  Witnesses   .            .  58- 

34.  Points  of  Rhetoric  to  be  Observed  by  Defendant's  At- 

torney            .......  39^ 


CHAPTER  IV. 


EXAMINATION  IN    CHIEF. 

35.  All  of  the  Facts  Must  be  Elicited 

36.  The  Fewest  Possible  Questions  and  Interruptions 

37.  Proper  an  1  Improper  Questions 

38.  Irritable  and  Unintelligible  Questioning 

39.  Order  of  Time  to  be  Observed  in  Eliciting  Evidence 

40.  Cross-Examining  One's  Own  Witness 

41.  Cautioning  Witnesses  About  Rules  of  Evidence    . 

42.  Leading  a  Witness        . 

43.  Unnecessary  Rapidity  and  Repetition 

44.  Verbose  Questions  to  be  Avoided 


Page. 
41 
42 
43 

44 
45 

46 
47 

48- 
48 
4» 


CHAPTER  V. 


CROSS  EXAMINATION. 

Page. 

§  45.    Knowledge  of  Human  Nature  .  .  .  .50 

48.     Dangers  of  Cross-Examination         .  .  .  .51 

47.  Good  Temper  of  the  Cross-Examiner  ,  .  .54 

48.  Prejudice,  and  Other  Hostile  Motives  on  the  Part  of  the 

Witness  to  be  Emphasized  on  Cross-Examination       .        56 

49.  Manner,  Style  and  Tone  of  Voice      .  .  .  .58 
60.    Asking  Questions  Liable  to  Call  Forth  Adverse  Replies   .        60 

51.  Cross-Examination  of  Evasive  and  Hostile  Witnesses       .        61 

52.  Some  Miscellaneous  Observations     .  .  .62 

53.  In  Conclusion    .....,,        63 


TABLE  OF  CONTENTS.  IX 

CHAPTER  VI. 

RK  KXAMINATION. 

Page. 
§  54.     General  Principles       ......        65 

55.  Dangers  of  Re-Examination  .  .  .  .66 

56.  Where  the  Cross-Exainination  is  Favorable  to  the  Re- 

Examiner  .  .  .  .  .67 

57.  Re-Exaraination  Where  the  Croas-Examination  is  Un- 

favorable to  the  Re-Examiner      .  .  .        67 

58.  Seizing  Opportunities  Offered  by  the  Cross-Examination 

to  Introduce  Matter  Otherwise  Inadmissible      .  .        68 

59.  Re-J]xamination  in  Cases  Where  Character  or  Credibility 

of  Witness  Has  Been  Attacked    .  ...        68 

60.  Pursuing  an  Equivocal  Reply   of    One's  Own    Witness 

Elicited  on  Cross-Examination     .  .  .  .70 

61.  Repitition  of  Evidence  in  Chief  on  Re-Examination       .        70 

CHAPTER  VII. 

SUMMING  UP  DEFENDANT'S  CASE. 

Page. 
i  62.    General  Considerations  .  .  -72 

63.  Right  to  Argue  Upon  Antecedent  Evidence  .  .        73 

64.  Points  of  Danger  ......        73 

65.  Accuracy  and  Exaggeration  .  .  .  .74 

CHAPTER  VIII. 
THB  REPLY. 


§66.  Value  of  the  •' Last  Word  "    .... 

67.  Securing  Attention  of  Court  and  Jury 

68.  Flattering  the  Jury      ..... 

69.  Display  of  Self-Contidence     .... 

70.  Personal  Attack  on  Opponent  or  His  Counsel 

71.  Effect  of  an  Earnest  and  Quiet  Manner 

72.  Order  and  Arrangement  of  the  Reply 
73  Attacking  Opponent's  Case  First 

74.  Dealing  With  the  Effect  of  the  Testimony,  Not  the  Tes- 

timony Itself  ..... 

75.  Importance  to  be  Attached  to  the  Probabilities  of  the 

Evidence      ...... 

76.  Conciseness  in  the  Reply        .... 

77.  The  Use  of  Illustrations  and  Conventional  Pbrasei 

78.  Appeals  to  Passion  or  Prejudice 


Page. 
75 

76 
76 
77 
78 
78 
79 
79 

80 

83 

84 
34 
85 


X  TABLE   OR  CONTENTS. 

Page. 

79.  A  Temperate  and  Accurate  Style       .  .  .  .86 

80.  The  Peroration  ......        87 

CHAPTER  IX. 

CONDUCT  OF  A  CRIMINAL  PROSECUTION. 

Page 
§81.    Order  of  a  Criminal  Trial       .....        88 

82.  Prosecution  Not  Persecution  ....        90 

83.  Opening  Statement — Avoiding  Argument    .  .  .93 

84.  Opening  Statement — Avoiding  Exaggeration         .  .        93 

85.  Opening     Statement  —  Conventional     and    Undignified 

Phrases         .......        93 

86.  Opening  Statement — Stating  Personal  Belief  as  to  Guilt 

of  Accused   .......        94 

87.  Opening  Statement — Interpreting  the  Indictment  to  the 

Jury    ........        94 

88.  Opening  Statement — Only  Facts  Bearing  Directly  on  the 

Issue  to  be  Stated    ......        95 

89.  Opening  Statement — Anticipating  the  Defense       .  .        96 

90.  The  Evidence — Order  and  Arrangement      .  .  .97 

91.  The  Evidence — Overlaying  the   Case  With  Too    Much 

Evidence      .......        97 

92.  The  Evidence — Police  Testimony  Not  to  be  Implicitly 

Relied  Upon  ......        99 

93.  The  Evidence — Concentrating  Attack  on  Main  Defenses 

of  Accused    .......      100 

94.  The  Evidence — Taking  Advantage    of    the  Defendant's 

Cross-Examination  .....      101 

95.  The  Evidence — How  to  Break  Down  a  False  Alibi  .      101 

96.  Closing   Address — Temperate    Reply    Versui    "Earnest 

Appear'        .......      104 

CHAPTER  X. 

CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL. 

Page. 
5  97.    The  Young  Lawyer  Before  the  Police  Magistrate    .  .      106 

98.    How  Far  Defense  Should    Show  Its  Hand  Before  Com- 
mitting Magistrate  .....      108 
99.    How  to  Deal  With  a  Defective  Indictment  .  .  .110 

100.  What  and  How  Many  Defenses  to  Make       .  .  .110 

101.  Opening  Statement  of  Counsel  for  Defendant         .  .      Ill 

102.  Methods  of  Objection  to  Evidence    .  .  .  .113 

103.  Emphasizing  Mistakes  of  Inaccurate  Witnesses     .  .113 


TABLE   OF   CONTENTS. 


XI 


-General  Bules 
-'•Drawing  Out"  an 


to     Handle 


104.  Cross -Examination  by  the  Defense- 

105.  Cross-Exam ination  by  the  Defense- 

Opposing  Witness   .... 

106.  Cross-Examination    by  the    Defense — How 

Hostile  AVitnesses   ...... 

107.  Whether  or  Not  Witnesses  Should  be  Called  or  Case  Sub- 

mitted on  State's  Evidence  .... 

lOS.    Closing  Address  for  the  Defense — Calling  Attention  to 

Absence  of  Motive  on  Part  of  Accused  . 
109. ,  Closing  Address  for  the  Defense — Calling  Attention  to 

Motive  of  Prosecuting  Witness    .... 

110.  Closing  Address  for  the  Defense — Explaining  Away  Diffi- 

cult and  Awkward  Points  in  the  Evidence 

111.  Closing  Address  for  the  Defense — Emphasizing  Good 

Character  of  Accused        .  .  .  .  . 

112.  Closing  Address  for  the  Defense — General  Considerations 

CHAPTER  XI. 


Page. 
114 

115 

116 

117 

118 

119 

120 

121 
122 


§  113. 

The 

114. 

The 

115. 

The 

116. 

The 

117. 

The 

118. 

The 

liy. 

The 

120. 

The 

121. 

The 

122. 

The 

123. 

The 

124. 

The 

125. 

The 

126. 

The 

127. 

The 

128. 

The 

129. 

The 

CLASSES  OF  WITNESSES. 

Lying  Witness 

Flippant  Witness 

Dogged  Witness 

Hesitating  Witness 

Nervous  Witness 

Cunning  Witness 

Witness  Partly  True  and  Partly  False 

Stupid  Witness    f . 

Semi-Professional  Witness 

Official  Witness 

Policeman  as  a  Witness 

Truthful  Witness 

Convict  as  a  Witness 

Private  Detective  as  a  Witness 

Handwriting  Expert  as  a  Witness 

Medical  Witness    . 

Vanity  of  Witnesses 


Page. 
124 
129 
131 
133 
134 
134 
135 
136 
137 
138 
139 
141 
142 
143 
146 
147 
149 


CHAPTEK  XII. 

TACT  AND  TACTICS. 

Page. 

§  130.    The  Meaning  and  Value  of  Tact  and  Tactics  to    the 

Advocate      ....•••      iol 

131.    Delicacy  of  the  Proceeding  to  Impanel  the  Jury  .      164 


Xll  TABLE   OF    CONTENTS. 


Page. 
156 
156 
157 
159 


132.  Ascertaining  Motives  Tending  to  Influence  the  Jury 

133.  Determining  the  Leading  Point  in  the  Case 

134.  Proper  and  Improper  Openi'»gs 

135.  What  Witnesses  Should  be  Called  and  in  What  Order 

136.  Superior  Value  of  Oral    Testimony   to  Written  Deposi- 

tions .  .  .  .  .  .  .161 

137.  How  to  Take  Care  of  the  Weak  Point  in  a  Case     .  .      163 

138.  Admissions  by  Counsel  or  His  Client  .  .  .       164 

139.  Calculating  the  Value  of  the    Evidence  or  the  Verdict  of 

the  Jury        .......      165 

140.  The  Value  of  the  "Last  Word'"  .165 

141.  Adaptation  and  Arrangement    of  the  Evidentiary  Forces 

in  the  Closing  Address       .....      166 

142.  The  Court — Overcoming  the  Preconceptions  of  the  Judge      167 

143.  The  Court — Assuming  that  the  Court  is  Ignorant  of  the 

Law    .  .  .  .  .  .  .  .167 

144.  How  to  Meet  an  Unscrupulous  and  Ill-Xatured  Opponent      168 

145.  Under  What  Conditions  an  Advocate  Profits  by  Delay      .      168 

146.  Danger  in  Wandering  from  the  Main  Point  .  .      170 

CHAPTER  XIII. 

BKIKFS,  AKGUMBNTS  AND  METHODS  OF  Sl'KAKINCi. 

l'a}?e. 
§  147.     The  Lawyer's  Brief — Its  Reciuisites  and  Value        .  .       173 

148.  Addressing  the    Court — Requisites  and   Value  of     Oral 

Argument     .......       177 

149.  Addressing  the  Court — Discussion  of    Principle  versus  the 

Citation  of  Authority         .  .  .  .  .179 

150.  Addressing  the  Court — Interruptions  by  the  Court  .       181 

151.  Addressing  the  J  Hiy — General  Considerations        .  .       181 

152.  Addressing  the  Jury — A  Temperate  Style  Before  a  Jury  .       184 

153.  Addressing  the  Jury — Winning  the   Master  Mind  of  the 

Jury  ........  185 

154.  Addressing  the  Jury — "'Oratory"  Before  a  Jury     .  .  186 

155.  Forensic  Eloquence — Its  Value  and  Requisites       .  .  187 

156.  Forensic  Eloquence — Genius  or  Hard  Work   asaRequisite  188 

157.  Forensic  Eloquence — Mental  Absorption  and  Concentra- 

tion    ........  191 

158.  Forensic  Eloquence — The  Value  of  a  Personal  Inquisition  192 

159.  Forensic  Eloquence — How  to  Meet  an  Attack         .            ,  194 

160.  Forensic  Eloquence — Discussion  of  Adverse  Authorities  .  195 

161.  Forensic  Eloquence — Order,  Arrangement  and   Perora- 

tion   ........       196 

162.  Elocution— Cultivation  of  the  Powers  of  Speech    .  .199 


TABLE  OF   CONTENTS.  Xlll 

Page. 

16S.    Elocution— Imitation  and  Affectations  of  Speech  .  .      201 

164.  Danger  of  Acliieving  a  Reputation  as  a  Wit  .  .      203 

165.  Appropriate  Physical  Gestures  and  Facial  Expressions  in 

Speaking       .......      203 

CHAPTER  XIV. 

LEGAL  ETHICS. 

Page. 
§  166.    General  Code  of  Ethics  .  .  .  .  .206 

167.  Code  of  Legal  Ethics    ......      208 

168.  Inviolability  of  the  Code  of  Ethics    .  .  .  .209 

169.  To  What  Extent  Professional  Conduct  is  Affected  by  the 

Code  .......      211 

170.  Methods  of  Enforcing  the  Code  ...  213 

171.  The  Advocate's  Relation  to  The  State — General  Consid- 

erations       .......      214 

172.  The  Advocate's  Relation  to  The  Court — General  Consid- 

erations       .......      216 

173.  The  Advocate's  Relation  to  the  Court — Attitude  Towards 

the  Judge     .......      218 

174.  The  Advocate's  Relation  to  the  Court — Attitude  Towards 

the  Jury       .......      219 

175.  The  Advocate's  Relation  to  the  Court — Attitude  Towards 

His  Own  and  Opposing  Witnesses  .  .  .      220 

176.  The  Advocate's  Relation  to  the  Court — Should  an  Advo- 

cate Practice  in  a  Court  in  Which   the  Judge  is  His 
Near  Kinsman         ......      222 

177.  The  Advocate's  Relation  to  the  Court— The   Impersonal- 

ity of  the  Advocate  .....      225 

178.  The  Advocate's  Relation  to   his  Client— The  Supremacy 

of  the  Client's  Interests      .....      227 

179.  The  Advocate's  Relation  to  his  Client— Is  Truth  a  Higher 

Obligation    .......      228 

180.  The  Advocate's  Relation  to  his  Client— Defending  One 

Whom  the  Advocate  Believes  to  be  Guilty        .  .      231 

181.  The  Advocate's  Relation  to  his  Client— Becoming  a  Party 

to  a  Fraud,  or  Maintaining  Harassing  or  Oppressive 
Litigation .232 

182.  The  Advocate's  Relation  to  bis  Client— Use  of  Improper 

Methods  or  Influences        .....      234 

183.  The  xVdvocate's  Relation  to  his  Profession— General  Con- 

siderations   ......  236 

184.  The  Advocate's    Relation    to  His    Profession— Attitude 

Towards  Opposing  Counsel  ....      238 


Xiv  TABLE   OF   CONTENTS. 

CHAPTER  XV. 

COMPENSATION  AND  ADVERTISING. 

185.  Compensation — General  Considerations 

186.  Compensation — Regulating  the  Amount  of  the  Fee 

187.  Compensation— Contingent  Fees 

188.  Compensation — When  an  Advocate  May  Contract  for  His 

Services  on  a  Salary  Basis 

189.  Advertising — General  Considerations 

190.  Advertising — Legal  Directories  and   Newspaper  Noto 

riety  ...... 

191.  Advertising — Divorce  Advertising    . 

192.  Advertising — Politics  as  an  Advertising  Medium  . 

193.  Advertising — Social  Acquaintance  and  Club  Life  . 

194.  Advertising— Pretending  to    be    Learned    or   Whelmed 

With  Business         ..... 

195.  Advertising — Employment  of  Runners 

196.  Advertising — "Buying  Up'"  Causes  of  Action 

197.  Advertising — Stealing  Another  Attorney's  Practice 

198.  Advertising  —  OtHce    Furniture    and    Modern    Business 

Methods      ...  ... 

199.  Advertising— The  Final  Test  of  Advertising  Methods 

APPENDIX. 


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249 
251 
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253 
254 
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257 

257 
25& 


AMERICAN  ADVOCACY. 


CHAPTER  I. 

PREPARATION   FOR   TRIAL. 


§1. 

Common  Sense. 

§  10. 

2. 

Knowledge  of  Human  Nature. 

3. 

Consultation  and  the  Writing 
of  Legal  Opinions. 

11. 

4. 

Listening    to    the    Client's 
Complaint. 

12. 

5. 

Sifting  the  Client's  Story. 

6. 

Arranging  and  Marshalling 
the  Evidence. 

13. 

7. 

The  Theory  of  a  Case  and 
Its  Importance. 

14. 

8. 

Discovering  and  Determining 
the  Legal  Outlines. 

1^5. 

9. 

Preparation    of     Pleadings. 

Interviewing  and  Coaching 

Witnesses. 
Interviewing  the  Adversary 

Party — Interrogatories. 
What  to  do  With  Weak  or 

Dangerous    Points    in  the 

Line  of  Battle. 
"Reading    Up"    the    Law 

of  the  Case.?  (^     '4 

Preparation  of    Address  to 

the  Jury. 
The  Three  Cardinal  Requi- 
sites. 


§  1.  Common  Sense.—  We  be^in  with  a  proposition, 
which  cannot  be  seriously  disputed,  namely,  that 
Common  /Sense  is  the  foundation  of  good  advocacy. 
A  man  may  be  brilliant  as  an  advocate,  and  even  suc- 
cessful, but  the  mere  dazzle  of  his  splendor  will  be- 
no  light  to  lighten  the  path  of  the  inexperienced. 
On  the  contrary,  it  may  mislead  him  by  its  fascina- 
tions, and  conduct  him  into  dangerous  errors.  A 
brilliant  advocate  may  be  bold  and  win  by  it;  or,. 
1 


2  AMERICAN -ADVOCACY. 

if  he  fail,  may  cover  his  defeat  by  masterly  and 
striking  efforts,  whereas  an  ordinar}^  person,  fail- 
ing in  his  attempted  imitation,  would  present  but 
a  clumsj"  appearance  in  his  overthrow.  Common 
Sense,  invaluable  in  all  human  pursuits,  is  of  the 
"utmost  importance  in  advocacy.  It  is  the  one  qual- 
it}'^  without  which  all  others  are  useless,  and  with 
which  almost  all  others  are  superfluous. 

There  is  nothing  about  the  trial  of  a  case  so  un- 
^isual  or  uncertain  as  to  frighten  the  young  advocate. 
It  is  a  most  prosaic  proceeding  in  the  great  majority 
of  cases,  and  its  sole  object  is  to  find  out  the  truth  in 
a  certain  stated  transaction.  The  j^oung  lawyer 
must,  therefore,  dismiss  all  the  romantic  dreams 
with  which  his  imagination  has  encircled  the  dome  of 
the  temple  of  justice,  and  enter  its  gates  as  he  would 
the  precincts  of  a  bank  or  counting  house,  with  the 
determination  merel}^  to  transact  the  business  of  his 
client  in  as  short  a  time  and  with  as  little  of  the 
spectacular  as  possible.  Indeed,  the  young  attorney 
will  find  that,  contrary  to  his  expectations,  a  little 
-common  sense  and  a  large  amount  of  self-confidence 
will  carry  him  further  in  the  trial  of  a  case  than  the 
great  mass  of  legal  principles  with  which  he  has 
"Crammed  his  head.  True,  this  mass  of  learning  will 
be  of  great  advantage  to  him  at  exceptional  moments, 
and  on  appeal,  but  all  the  little  confusing  details  of 
the  trial  of  a  case  ore  not  to  be  settled  by  a  recourse 
upon  the  authorities,  but  by  the  application  of  a  little 
common  sense  and  sound  business  judgment. 

§  2.  Knowledge  of  Human  Nature. — An  advocate  is 
always  dealing  with  human  nature.  It  is  not  only 
the  instrument  he  works  with,  it  is  also  the  field  of 
his  labors.  AVhether  he  measures  his  opponent,  or 
estimates  the  qualities  of  the  jury,  or  probes  the 
mind  and  character  of  the  witness,  a  knowledge  of 


PREPARATION  FOR  TRIAL.  3 

human  nature  or  human  character  is  the  key  to  suc- 
cess. To  treat  mankind  as  mere  machines,  as  some 
advocates  occasionally  do,  is  to  show  an  utter  ab- 
sence of  that  knowledge  which  is  often  the  last 
acquirement  but  alwa3's  the  first  necessity  of  an  ad- 
vocate. The  worst  thing  a  man  can  do  is  to  treat 
the  jury  as  though  they  were  so  many  fools.  And 
this  mode  of  treatment  is  by  no  means  exceptional. 
Young  advocates,  fresh  from  the  glories  of  their  de- 
bating societies,  are  prone  to  undervalue  the  com- 
moner knowledge  of  business  men.  It  is  a  mistake 
of  youth.  Whatever  may  be  their  mental  capacity, 
whether  the  advocate  has  a  stupid  or  a  wise  jury,  to 
treat  them  as  unworthy  his  respect  is  probably  to 
lose  his  case,  and  to  discover  himself  a  man  of  very 
little  wisdom.  There  are  almost  sure  to  be  one  or 
two  shrewd  men  on  the  commonest  of  common  juries, 
and  inasmuch  as  they  will  lead  the  rest,  the  advocate 
must  beware  of  making  them  his  enemies,  as  he  un- 
doubtedly will,  if  he  lets  them  suppose,  by  word  or 
manner,  that  he  considers  them  of  little  understand- 
ing.    This  applies  also  to  parties  and  witnesses. 

The  advocate,  therefore,  should  closely  study  hu- 
man nature  and  endeavor  to  adapt  himself  to  all  con- 
ditions of  men,  so  as  always  to  be  attractive  and 
winning,  never  repellant. 

^  3.  Consultation  and  the  Writing  of  Legal  Opin- 
ions.— The  giving  of  legal  advice  is  one  of  the  most 
important  and  lucrative  features  of  the  advocate's 
office  work.  Sometimes  this  advice  is  oral;  more 
often  it  is  in  the  form  of  a  written  brief.  An  at- 
torney should  never  permit  himself  to  deliver  an 
opinion  ott'-hnnd  on  anj^  point  of  law  about  which  he 
has  any  doubt.  Tlie  best  ])ractice  is  to  request  the 
client  to  return  again  when  the  attorney  will  be  pre- 
pared  to  furnish   him   with  an  opinion  based  on  a 


4  AMERICAN  -ADVOCACY. 

thorough  investigation  of  the  authorities.  Often 
young  lawyers  look  upon  it  as  a  confession  of  weak- 
ness not  to  be  able  to  decide  upon  a  given  legal  prop- 
osition the  very  minute  it  is  stated  by  the  client. 
On  the  contrary'-  he  will  often  find  clients  who  will 
politely  request  him  to  look  the  question  up  and  be 
sure  about  it.  No  lawyer  can  possibly  carry  all  the 
law  in  his  mind,  and  most  clients  are  aware  of  this 
fact,  so  that  an  immediate  expression  of  opinion  on 
the  part  of  the  attorney  not  only  cheapens  his  ad- 
vice, but  insinuates  a  suspicion  into  the  mind  of  the 
client  that  the  attorney  is  trying  to  shine  in  a  false 
light.  It  also  makes  a  client  feel,  especiall}^  where 
such  impromptu  advice  has  to  be  recalled  on  more 
matui'e  reflection,  that  the  attorney  is  a  man  that 
acts  impulsively  and  not  considerately,  and  there- 
fore, not  a  safe  and  absolutely  reliable  counsel. 

§  4.  Listening  to  the  Client's  Complaint.  —  The 
earliest  intimation  the  practitioner  will  have  of  his 
cause  will  usually  come  from  his  client,  who  seeks 
his  advice  either  as  to  the  advisability  of  bringing 
suit  or  of  maintaining  a  defense.  Even  the  most  un- 
couth and  unlettered  men  have  the  faculty  of  impart- 
ing their  version  of  a  matter  more  clearly  in  their 
own  rambling  way  than  bj?"  answering  an  attorney's 
questions.  Thej^  have  turned  it  over  repeatedly  in 
their  minds,  and  will  tell  most,  if  not  all,  of  the 
salient  facts,  if  permitted  to  take  their  own  time  and 
their  own  method.  Hence,  the  lawyer  must  be  pre- 
pared to  sit,  it  may  be  for  hours,  listening  carefully 
and  with  sympathy  to  a  voluble  account  (sometimes 
interspersed  with  imprecations  or  with  tears),  and 
out  of  the  mass  of  chaff  he  must  extract  the  grain. 
When  the  client  has  told  all  he  can  remember  and 
has  fairly  emptied  himself  of  his  case,  the  advocate 
may  then  catechise  him,  sifting  his  statements  and 


PREPARATION  FOR  TRIAL.  5 

cross-examining  him  as  vigorously  as  though  he 
were  his  antagonist.  Thus,  he  may  often  discover 
important  facts  which  he  has  eitlier  neglected  to 
mention  or  has  intentionally  concealed. 

§  .5.  Sifting  tlie  Client's  Htory.— The  purposes  of 
this  severe  examination  are,  first,  to  ascertain  if 
there  is  a  probability,  upon  legal  gr-ounds,  that  a  re- 
covery can  be  had  if  suit  is  brought;  and  second,  to 
determine  whether  it  is  advisable,  under  all  the  cir- 
cumstances, to  institute  legal  proceedings,  assuming 
the  suit  would  be  successful.  To  learn  the  first 
point  the  attorney  will  have  recourse  to  his  store  of 
technical  knowledge,  and  if  he  is  at  all  in  doubt  he 
will  frankly  state  that  he  needs  time  for  considering 
the  question  and  investigating  the  authorities.  In 
determining  the  advisability  of  bringing  suit,  as  a 
matter  of  policy  he  will  seek  with  all  proper  regard 
for  his  client's  feeling  to  find  out  from  him  the  situ- 
ation of  his  family  or  business  afl:'airs,  and  whether  the 
institution  of  an  action  would  in  any  way  jeopardize 
his  more  important  interests.  He  will  particularly 
inquire  respecting  the  solvency  of  the  party  against 
whom  suit  is  to  be  brought,  that  he  may  not  waste 
his  own  and  his  client's  energies  in  attacking  a  man 
of  straw.  If  the  client  be  sued  and  consult  his  at- 
torney as  to  his  defense,  the  same  minute  examina- 
tion will  be  necessar}',  for  it  is  a  common  trait 
among  litigants  to  believe  they  can  prove  their  case 
without  difficult}^  but  that  their  adversary  will  be 
hampered  b}'  a  failure  of  evidence  at  every  step. 
The  client  will  often  undertake  to  provide  ample 
proof  of  each  fact  material  to  his  case,  but  the  advo- 
cate is  never  to  rely  upon  that  assurance.  This  sift- 
ing process  has  a  further  value;  not  infrequently  the 
client  has  reasoned  out  a  plan  of  action  or  a  series  of 
arguments   which  will    prove  of  real  value  to  his 


6  AMERICAN- ADVOCACY. 

counsel  in  fighting  the  battle.  But  the  counselor 
will  never  forget  that  he  alone  is  the  commander-in- 
chief,  and  though  he  stand  willing  to  avail  himself 
of  wise  and  practical  suggestions  or  sound  argument 
oflPered  by  his  client,  he  never  allows  the  legal  opin- 
ions of  a  laj^man  to  override  and  direct  the  actions  of 
a  professional  adviser. 

§  6.  Arranging  and  Marshalling  the  Evidence  Before 
Trial. — After  the  witnesses  have  been  thus  sub- 
jected to  examination  and  study,  it  will  be  advisable 
to  write  down  on  separate  sheets  of  paper  what  each 
one  will  testify  to,  and  indorse  this  abstract  with  the 
name  of  the  case  and  of  the  witness.  These  are 
kept  together,  and  will  prove  of  inestimable  value 
at  every  stage  of  the  litigation:  for  it  frequently 
happens,  after  a  lawyer  has  filled  his  mind  with  his 
case,  there  is  a  postponement  until  some  remote 
time,  and  in  the  interval  his  memory  loses  its  first 
vivid  impressions  of  nice  points  and  slight  inci- 
dents. 

Where  the  advocate's  evidence  consists  of  docu- 
ments, it  is  of  prime  importance  that  he  see  the 
document  itself,  and  not  trust  to  another's  recollec- 
tion of  its  contents.  His  personal  inspection  may 
reveal  erasures  and  alterations  which  must  be 
explained,  fatal  ambiguities  or  ruinous  clauses  and 
conditions.  It  will  greatly  assist  him  in  mivstering 
the  facts  to  visit  the  place  in  w^hich  occurred  the 
accident,  crime  or  transaction  in  question.  The 
judge  and  jury  will  be  ignorant  of  the  situation,  and 
his  own  observation  will  enable  him  to  be  far  clearer 
and  more  accurate  in  depicting  the  scene  than  wil . 
the  study  of  diagrams  and  the  reports  of  witnesses. 

After  the  advocate  has  marshalled  all  the  facts 
which  he  has  gleaned  from  men,  documents  and  local- 
ities, he  will  crystallize  his  information  bj^  reducing 


PREPARATION  FOR  TRIAL.  7 

the  whole  to  writing  in  narrative  form,  so  that  any- 
one, by  reading  his  abstract,  may  derive  a  distinct 
and  adequate  idea  of  the  case. 

§  7.  The  Theory  of  a  Case  and  Its  Importance. — The 
theory  of  a  case  is  that  particular  line  of  reasoning 
of  either  party  to  a  suit,  which  aims  to  bring  together 
certain  facts  of  the  case  in  a  certain  order  or  logical 
sequence  and  interrelate  them  in  such  a  manner  as 
to  produce  in  the  mind  one  definite  result  or  con- 
clusion, which  the  advocate  believes  entitles  him  to 
the  judgment  or  decree  of  the  court  under  the  appli- 
cation to  such  result  or  cgnclusion  of  certain  well 
known  principles  of  law.^  The  theory  thus  con- 
structed lies  at  the  foundation  of  the  advocate's  ca,se. 
His  pleading  outlines  his  theory;  his  evidence  fills  it 
in  and  gives  it  shape;  and  the  principles  of  law  which 
he  cites  must  support  the  result  which  his  theory 
has  produced. 

The  law  insists  that  every  case  proceed  upon  some 
definite  theor3^  Although,  under  our  modern  codes, 
pleading  has  been  made  so  simple  a  matter  as  almost  to 
encourage  negligence,  nevertheless  courts  draw  the 
line  at  haphazard  and  speculative  litigation.  A  party 
cannot  make  indefinite  and  uncertain  allegations  in 
his  pleadings  and  then  enter  a  trial  aimlessl^y,  per- 
mitting the  evidence  to  carry  him  where  it  will,  and 
finally  insist  on  one  or  the  other  of  the  different 
phases  of  his  case  which  seem  to  him  at  that  time 
most  desirable. 

Moreover,  wliile  a  failure  to  determine  a  theory  at 
all  or  a  mistake  in  selecting  a  proper  theoi-y  is  not 
necessarily  fatal,  it  always  injures  a  case.     Some- 


1  DeQuincey  gays:  *'A  theory  takes  a  multitude  of  facts,  all  dis- 
jointed, or,  at  most,  suspected  of  some  inter-dependency;  these  it 
takes  and  places  under  strict  laws  of  relation  to  each  other." 


8  AMERICAN,  ADVOCACY. 

times  a  trial  court  will  assist  the  young"  advocate, 
who  comes  into  court  without  any  definite  theory  as 
to  his  case,  to  find  one,  by  inquiring,  upon  objection 
of  the  other  part}"  to  the  introduction  of  certain  evi- 
dence, what  the  advocate  is  "trying  to  prove  by  that 
witness,"  and  then  as  to  "what  bearing  that  evidence 
will  have  upon  the  case."  In  his  answer  to  these 
questions,  an  attorney  who  comes  into  court  with- 
out a  well  constructed  theory  of  his  case,  is  forced 
to  declare  one  on  the  spur  of  the  moment  or  seri- 
ously affect  his  chances  of  a  verdict.^ 

More  important  in  some  respects,  probabl}",  than 
the  construction  of  a  theory,  is  the  determination  of 
an  accurate  hypothesis  on  which  to  construct  the 
theory.  Uberweg  defines  an  hypothesis  as  "the  pre- 
liminary admission  of  an  uncertain  premise  which 
states  what  is  held  to  be  a  cause  in  order  to  test  it 
by  consequences."  The  hypothesis,  therefore,  pre- 
cedes the  theory,  and  upon  a  proper  hypothesis 
depends  the  success  of  the  theor}'. 

The  first  thing,  therefore,  which  an  advocate  is 
to  do,  after  having  secured  a  full  statement  of  the 
facts   from   his  client,    is  to  fix  upon   a    proper 


''•The  same  case,"' says  Mr.  Elliott,  "may  be  gained  on  a  sound 
theory  that  would  be  lost  on  a  bad  one.  One  advocate  may  take  the 
game  facts  and  secure  a  verdict,  while  another  will  bo  unable  to  frame 
a  theory  that  can  be  successfully  maintained.  A  case  is  given  by  Mr. 
Bishop  in  which  goods  were  brought  into  this  country  in  violation  of 
our  revenue  laws;  they  passed  the  custom-house  officers  under  a  permit 
genuine  in  form  and  signature,  but  procured  by  bribery.  Counsel  to 
"Whom  the  revenue  officers  first  applied  for  advice  searched  the  statutes, 
and,  finding  no  provision  applying  to  the  particular  case,  advised  that 
no  prosecution  could  be  maintained.  Another  counsel  took  up  the  case 
and  secured  a  verdict.  His  theory  was  that  the  case  was  the  ordinary 
one  of  smuggling,  and  so  he  put  it  to  trial.  Wlicn  the  permit  was  offered 
it  went  in  evidence,  but  was  assailed  and  overthrown  on  the  ground  of 
fraud.  The  mistake  of  the  couns'^l  first  consulted  was  in  framing  the 
theory  of  the  case.'"— ElUotfs  Work  of  the  Advocate,  p.  76. 


PREPARATION  FOR  TRIAL.  9 

hypothesis.  Revolving  in  his  mind  the  various 
explanations  suggested  to  his  mind  of  the  occur- 
rences related  to  him  by  his  client,  the  advocate 
should  finally  determine  on  the  one  which  fits 
in  most  accurately  with  all  the  facts  in  the  case, 
and  on  that  hj^pothesis  or  explanation  construct 
his  theory,  weaving  into  the  fabric  all  the  evi- 
dence which  goes  to  sustain  the  hypothesis  thus 
selected,  and  ignoring  or  discarding,  for  his  own 
purpose,  at  least,  all  facts  in  the  case  which  would 
seem  to  support  a  different  hj^pothesis.^     For  these 


'  Thus,  take  an  actual  case,  wbieli  is  now  pending  in  one  of  the  couTts' 
of  the  country,  but  not  yet  tried  or  decided.  A  client  comes  to  his  attorney 
witii  this  statement  of  facts:  A.,  the  client's  wife,  carried  certain  insur- 
ance on  her  life,  payable  to  her  husband.  She  had  several  small  chil- 
dren whom  she  loved.  On  July  1st,  she  contracted  a  fatal  illness,  and, 
on  the  22d  of.the  same  month,  she  died.  She  had  often  said,  during  her 
illness,  that  she  wanted  the  money  due  on  the  policy  of  insurance  to  go 
to  her  children.  After  her  death  it  appeared  that,  on  the  18th  of  July, 
«he  had  signed  an  application  for  a  change  of  beneficiary,  giving  the 
proceeds  of  the  policy  to  iier  sister,  her  only  living  relative,  instead  of 
to  her  husband.  There  was  evidence  that  the  wife  and  husband,  as  well 
as  the  wife  and  sister,  were  not  on  friendly  terms.  A  witness,  whose 
name  was  subscribed  to  the  application  for  change  of  beneficiary,  said 
■she  was  not  present  at  tlie  signing,  but  signed  the  application  at  the 
request  of  the  sister.  The  sister  was  in  the  sick  room  almost  constantly, 
but  seldom  alone.  The  physician  who  attended  the  wife  said  that,  on 
the  18th  of  July,  the  wife  was  so  delirious  and  weak  as  to  be  utterly 
incapable  of  signing  her  name.  Tiie  signature  on  the  application,  how- 
ever, resembled  very  closely  that  of  the  wife,  although  the  application 
is  filled  in  by  another  hand.  The  sister  proved  up  the  death  and  was 
paid  the  face  of  the  policy.  These  were  all  the  facts.  It  is  evident  that 
the  attorney  in  this  case  was  compelled  to  look  around  to  discover  ap 
hypothesis  on  whicli  to  reconcile  all  these  facts  before  he  could  proceed 
a  single  step  What  one  shall  he  take?  First,  the  wife  may  have  signed 
the  application  in  a  fit  of  jealousy  or  an^er  at  her  husband.  Second,  she 
may  have  signed  the  application  because  of  the  undue  influence  of  her 
sister.  Third,  she  may  liave  signed  the  application  in  blank,  re(|ucsting 
that  it  be  tilled  in  making  the  insurance  payable  to  her  sister  as  trustee 
for  her  children.  Fourth,  she  may  never  have  signed  it  at  all,  and 
acme  one  has  committed  a  forgery.  Fifth,  if  the  latter  hypothesis  Is 
correct,  the  mind  at  once  fixes  upon  the  sister  as  the  one  having  sutii- 


10  AMERICAN   ADVOCACY. 

latter  phases  of  the  evidence  the  adversarj'  will 
undoubted  1}^  find  convenient  uses  in  establishing'  an 
alibi  or  other  parts  of  his  defense. 

§  8.  Discovering  and  Determining  the  Legal  Out- 
lines.— The  advocate  will  now  address  himself  to  the 
law  applicable  to  the  facts  of  his  case.  Much  time 
will  be  saved  by  constructing  a  written  outline  of 
legal  propositions  involved  and  considering  these 
strictly  in  order.  The  advocate's  desire  will  be  to 
select  one  branch  of  the  case  which  appears  pecu- 
liarl}'  attractive,  and  make  extensive  preparation 
upon  it,  leaving  his  forces  dangerousl}'  exposed  at 
another  and  less  interesting  point.  The  onl}^  safe 
plan  is  that  pursued  b}'  a  general  who  arranges  his 
hosts  for  battle;  each  part  of  the  line  must  be  well 
defended,  there  must  be  no  gaps.  Another  seduc- 
tive temptation  will  be  to  investigate  the  law  on 
some  subject  verj'  similar  to  the  one  the  advocate 
has  in  hand,  j'et  not  precisely  his  question.  The 
advocate  must  restrain  the  mind  and  command  it  tO' 
investigate  the  very  point  which  he  has  noted  in  his 
outline.^ 


cient  interest  to  commit  the  crime.  To  the  thoughtful  student  various 
facts  (more  or  less  numerous)  can  be  found  that  will  coincide  with  each 
hypothesis.  The  attorney  for  the  husband  chose  the  last  two  hypotheses 
as  the  basis  of  his  cause  of  action.  The  insurance  company,  in  defense, 
adopted  the  first  one  suggested.  Each  party  then  searched  for  and  appro- 
priated all  facts  in  the  case  that  supported  their  respective  hypotheses, 
and  with  these  elements  constructed  their  res|)ectivc  theories. 

Suppose  that,  in  addition  to  this  civil  action,  an  indictment  is  found 
against  the  sister  for  forgery.  The  state,  of  course,  finds  its  hypotheses- 
in  the  fourth  and  fifth  suggestions.  The  sister,  in  defense,  might  adopt 
either  one  or  all  of  the  others  as  a  basis  of  defense. 

1  For  example,  if  the  advocate  is  inquiring  whether  a  railroad  com- 
pany which  has  received  goods  for  carriage  froui  one  who  has  stolen 
them,  may  detain  them  from  the  rightful  owner  until  the  transportation- 
charges  are  paid,  the  mind  by  a  natural  perversity  will  tend  to  discover 
the  law  governing  livery  stable  keepers,  warehousemen,  innkeepers  and? 


PREPARATION  FOR  TRIAL.  II 

But  perhaps  the  advocate's  powers  are  not  accus- 
tomed to  this  kind  of  thinking;  how  is  he  to  know 
what  points  of  law  to  investigate  and  what  is  appUca- 
ble  to  his  case?  Two  species  of  preparation  every 
lawyer  expects  to  make:  a  general  pre])aration  result- 
ing from  his  investigation  during  student  days, 
and  from  those  minute  particles  of  law  which  he  has 
since  learned,  line  upon  line,  prece^Dt  upon  precept, 
here  a  little^  and  there  a  little,  out  of  his  reading^ 
his  conversation  with  lawyers,  attendance  at  court, 
and  from  actual  experience  in  practice.  Besides  this 
stock  of  general  working  knowledge,  which  should 
grow  larger  and  richer  with  every  passing  year,  is  the 
special  preparation  required  for  each  case.  None 
but  the  shallowest  of  lawyers  will  ever  trust  to  his 
general  knowledge  when  a  legal  battle  is  to  be  fought. 
Hence,  to  discover  the  law  points  involved  in  his 
suit,  the  advocate  should  summon  the  results  of  his 
general  preparation;  and  in  the  light  of  all  he  knows, 
see  how  the  facts  impress  him  ^/.y  a  horfjer,  not  as  a 
philanthropist,  a  politician  or  a  citizen.  Where  do 
the  strong  propositions  lie?  Where  are  the  weaker? 
What  is  the  natural,  the  rational  and  common-sense 
mode  of  looking  at  the  case?  What  legrJ  proposi- 
tions are  instantly  suggested  by  the  facts,  as  applica- 
ble to  the  cause?  What  are  the  peculiar  features  of 
the  case  which  especially  appeal  to  the  legal  sense  of 
justice?  Do  these  special  features  lead  the  mind 
toward  further  propositions?  Are  these  proposi- 
tions sound  or  fallacious?  Which  of  them  will  appeal 
most  strongly  to  a  court?     B}-  thus  catechising  him- 

iiicoliaiiloo  vvho  detain  stolen  property  under  similar  circumstances, 
until  their  charges  are  collected.  These  similar  cases, may  subseiiuently 
be  valuable  by  way  of  analogy,  but  the  advocate's  business  now  is  to 
learn  what  rule  governs  railroad  companies,  and  he  is  to  bend  his  mind 
to  that  one  task  witli  a  grip  of  steel. 


12  AMERICAN  -ADVOCACY. 

self  the  advocate's  faculties  will  be  roused  into  action, 
and  points  and  arguments  will  come  trooping  to  his 
command. 

§  9.  Preparation  of  Pleadings. — A  subject  of  the 
importance  of  this  would  seem  to  demand  a  separate 
chapter.  But  it  is  hardly  necessary  for  our  purpose, 
especially  in  view  of  the  large  number  of  text  books 
on  the  subject  of  pleading,  both  at  the  common  law 
and  under  the  code. 

The  attorney  who  is  well  versed  in  the  law  of  his 
case  and  familiar  with  the  general  rules  of  pleading, 
will  usually  find  little  difficult}^  in  preparing  his 
pleadings.  But  to  the  young  attorney  the  most  prof- 
itable possibly  of  all  studies,  after  leaving  the  law 
school,  is  that  of  the  Code  of  Procedure  and  the  Form 
Books  of  his  own  state.  Most  of  the  technicalities 
of  pleading  and  practice  will  be  mastered  in  this 
manner.^ 

As  far  as  pleading  affects  advocacy,  that  is,  the 
influence  it  may  exert,  beyond  the  mere  presentation 
of  the  cause  of  action  in  winning  a  verdict,  three  rules 
might  be  remembered  with  profit.  First:  The  state- 
ment of  facts  must  be  clear  and  succinct.  Nothing 
makes  such  an  impression  on  the  jury,  not  even  the 
opening  statement  of  counsel  as  a  well  worded  peti- 

J  A  most  useful  suggestion  was  once  made  to  the  writer  by  an  attorney 
of  St.  Louis.  The  suggestion  was  this:  During  the  first  years  of  a 
lawyer's  practice,  when  time  is  not  so  valuable  an  asset  as  it  is  later  in 
his  practice,  he  will  make  a  most  profitable  investment  if  he  undertake 
to  make  a  study  of  the  files  of  old  caset  stored  away  among  the  archives 
of  the  clerk's  ofiice.  Here  will  be  found  forms  for  pleading,  motions, 
answers,  depositions,  stipulations,  appearances  and  decrees — forms,  too, 
that  have  been  tested  in  the  heat  of  actual  controversy.  A  note  book  at 
hand  to  take  down  memoranda  of  the  best  illustrations  of  the  different 
forms  used  under  various  circumstances,  together  with  a  persistent, 
thoughtful  and  enthusiastic  examination,  will  save  the  young  attorney 
many  a  mistake  in  p'eading  and  practice,  and  arm  him  with  the  con- 
fidence of  an  older  |  ractitioner. 


PREPARATION  FOR  TRIAL.  13 

tion,  one  not  so  clouded  b}'  legal  phraseology^  and 
clumsily  stated  facts  as  to  make  the  effort  of  the  jury- 
to  follow  it  a  matter  of  too  much  exertion,  but  one 
which  interests  the  jury  from  the  start,  and  carries 
them  along  without  any  apparent  effort  on  their  part 
until,  at  the  close,  they  see  the  advocate's  case,  from 
his  standpoint,  as  clearly  as  he  does,  and  in  a  measure 
partake  of  his  enthusiasm.  Second:  Just  enough 
facts  should  be  stated  to  constitute  a  cause  of  action 
and  make  the  whole  transaction  as  clear  as  possible 
from' the  advocate's  point  of  view.  It  is  Yevj  bad 
practice  to  introduce  all  or  even  a  great  part  of  the 
evidence  in  the  petition,  not  merely  because  it  is 
more  dangerous  from  the  fact  that  it  makes  the  proof 
more  difficult,  and  offers  the  adversary  more  oppor- 
tunities for  preparation,  objection  and  delay,  but 
because  of  its  effect  upon  the  jury.  A  jury  should 
not  be  told  the  case  in  its  most  favorable  light  in 
the  petition;  otherwise,  a  slip  in  the  evidence  may 
disappoint  the  first  favorable  impression  which  the 
case  made  upon  them.  On  the  contrary,  the  evidence 
should  unroll  before  them  a  constant  succession  of 
surprises,  confirming  and  increasing  the  favorable 
impression  which  they  first  received  from  the 
reading  of  the  petition.  TJiird:  The  advocate 
should  never  demand  exaggerated  damages.  This 
is  a  common  fault  of  some  attorneys  who  think  to 
overwhelm  the  ]Mvy  in  their  favor  by  such  highly 
colored  statements  of  the  effects  of  the  defendant's 
wrongful  conduct,  when  as  a  general  rule  the  jury 
is  only  disgusted  by  what  they  consider  an  ill- 
disguised  attempt  to  humbug  them.  It  is  useless  to 
create  such  an  impression  only  to  be  compelled  after- 
wards to  overcome  it  by  the  sheer  strength  of  evi- 
dence. Nobody  can  tell  what  goes  to  make  up  the 
mind  of  the  ordinary  juror  in  deciding  a  closely  con- 


14  AMERICAN   ADVOCACY. 

tested  case;  and  it  is,  therefore,  always  important 
to  watch  every  opportunity^  to  create  a  favorable 
impression,  and  avoid  anything  calculated  to  arouse  a 
.spirit  of  resentment  or  of  contempt. 

§  10.  Interviewing  and  Coaching  Witnesses.  —  Next 
in  importance  to  consulting  the  client  is  interviewing 
the  witnesses.  To  best  accomplish  this  the  attornej^ 
must  know  something  of  them  before  they  are  ap- 
proached. Is  their  attitude  in  the  case  hostile  or 
iriendly  to  his  side?  Are  they  under  any  strong 
inducement  to  conceal  facts  or  to  distort  and  color 
them?  Are  they  to  be  relied  on  implicith^  or  must 
we  verify  and  corroborate  all  their  statements?  Are 
■fchey  liable  to  be  tampered  with  bj^  the  adversary,  or 
are  they  proof  against  all  corrupt  influence?  What 
has  been  their  moral  historj'?  These,  among  other 
facts,  should  be  considered  before  the  witness  is 
approached,  to  the  end  that  the  advocate  may  secure 
from  him  the  most  and  the  best  proof  he  is  capable 
of  giving.  What  the  manner  of  that  approach  will 
be  must  depend  upon  the  character  of  the  witness. 
If  the  latter  is  thoroughly''  reliable  the  advocate  may 
explain,  with  some  degree  of  fullness,  what  his  posi- 
tion is,  but  never  to  such  an  extent  that,  if  the  wit- 
ness prove  false,  he  can  damage  his  case  by  betrajnng 
the  advocate's  plan  of  action  to  the  enem}^. 

In  his  dealings  with  witnesses  the  advocate  will 
recall  that  most  persons  dread  to  testif}^  in  court, 
and  among  women  this  reluctance  is  almost  univer- 
sal. If  it  is  evident  that  a  particular  person  knows 
more  than  he  will  tell,  and  keeps  silent  in  the  hope 
that  he  ma}^  escape  the  ordeal  of  testifying,  it  will 
be  necessary  to  argue  the  matter  with  him  in  a  spirit 
of  friendliness,  and  seek  to  overcome  his  fears  or  his 
prejudices  by  legitimate  appeals  to  his  interest  and 
his  sense  of  right  and  justice.     The  co-operation  of 


PREPARATION  FOR  TRIAL.  15 

an  acquaintance  may  be  secured  to  induce  him  to 
divulge  what  he  knows.  If  all  expedients  fail,  and 
the  advocate  is  confident  he  will  not  disclose  the 
facts,  it  will  generall}^  be  safest  not  to  summon  him  as 
a  witness,  for  his  stubborn  silence  upon  the  witness 
stand  will  detract  from  his  side  of  the  controvers3^ 

On  the  other  hand,  the  advocate  may  find  his  wit- 
nesses suspiciously  talkative;  they  know  too  much. 
He  will,  therefore,  proceed  with  them,  as  with  his 
client,  sifting  their  knowledge,  cross-examining  them 
as  his  antagonist  will  probably  do  at  the  trial. 
He  will  have  them  narrate  the  details  of  the 
events  about  which  they  seem  conversant.  "Where 
did  you  stand  when  the  accident  occurred?  Who 
else  was  thei^e?  Where  had  you  been?  Where,  after- 
wards, did  you  go?  Was  it  daytime  or  dusk?  To 
whom  did  jou  speak?"  etc.  Especially,  the  attorney 
will  seek  to  discover  what  are  the  sources  of  the  wit- 
ness' knowledge,  whether  it  is  derived  from  hearsay 
reports  or  third  parties,  or  from  personal  observa- 
tion, and  if  they  are  stating  what  they  actually  saw  and 
did,  or  merely  their  conclusions  and  opinions,  founded 
upon  the  facets  perceived. 

The  attornej''  must  warn  his  witness  against  a  very 
common  trick  practiced  by  some  lawyers.  In  endeav- 
oring to  discredit  the  testimony  of  a  witness  they  will 
often  ask  him  on  the  witness  stand  whether  he  has 
consulted  with  the  attorney  of  the  party  in  whose 
behalf  he  has  testified.  The  first  impulse  of  a  wit- 
ness is  to  answer,  no.  This  is  so  apparently  false 
in  most  cases  that  a  jury  is  not  genei-ally  inclined  to 
believe  it.  Tlie  witness  should  be  advised  to  answer 
such  a  question  very  emphaticall}'  in  tlie  affirmative, 
as  such  an  answer  can  by  no  possibility  injure  the 
case  of  the  part^^  for  whom   the  witness   testifies 


16  AMERICAN  .ADVOCACY. 

and  a  very  emphatic  and  abrupt  answer  often  embar- 
rasses the  attorney  who  attempts  the  trick. 

The  phrase  "coaching  a  witness"  does  not  at  the 
present  time  appear  to  be  an  attractive  term.  But, 
given  its  proper  significance,  there  is  nothing  ques- 
tionable about  the  process.  Coaching  a  witness  does 
not  mean  manufacturing  evidence  to  put  in  his  mouth. 
On  the  contrary,  it  means  deciding  beforehand,  how 
much  of  the  witness' story  shall  be  told  on  the  stand, 
and  the  manner  in  which  he  is  to  tell  it.  Its  purpose 
is  to  cut  out  all  irrelevant  matter  and  thus  make  the 
story  of  the  witness  stand  out  as  clearly  and  force- 
fully as  possible,  and  to  prepare  the  witness  for  the 
tricks  of  counsel  on  cross-examination. 

The  main  thing  to  impress  upon  the  witness,  among 
other  things  we  have  already  stated,  is  that,  when 
upon  the  witness  stand,  he  speak  out  the  answer 
unhesitatingly,  with  animation,  and  in  a  clear  and 
distinct  tone  of  voice. 

Some  lawyers  advocate  ,the  wisdom  of  taking  the 
affidavits  of  witnesses  of  whose  fidelity  or  freedom 
from  influence  they  are  not  certain.  In  case  such 
witness  should  afterwards  be  prevailed  upon  to 
deny  his  former  statements  to  counsel  his  afiidavit 
will  not  only  destroy  his  subsequent  testimony  on 
trial,  but  cast  suspicion  on  the  entire  case  of  the 
adversary  who  called  him. 

§  11.  Interviewing  the  Adversary  Party — Interroga- 
tories.— The  attorney  will  not  rest  satisfied  with  inter- 
viewing all  his  own  witnesses,  but  will  try  to  see  the 
adversary  part}'-  and  those  whom  he  expects  to  call. 
This  is  liable  to  be  a  barren  inquiry;  still,  valuable 
hints  are  sometimes  dropped  which  will  put  him  upon 
his  guard  against  surprise.  In  the  latter  investigation 
he  should  remember  that  it  is  unworthy  of  his  pro- 


PREPARATION  FOR  TRIAL.  17 

fession  to  deceive  the  person  interviewed  into  believ- 
ing he  is  conversing  with  an  ally  or  a  friend.  It  is 
entirely  legitimate,  however,  to  study  his  demeanor 
and  to  question  him  closely  in  order  to  decide  how  he 
is  to  be  dealt  with  on  the  trial. 

Whether  it  is  of  any  value  to  submit  inter- 
rogatories to  the  adverse  party,  as  is  often  done, 
is  a  matter  of  much  doubt.  In  the  great  ma- 
jority of  cases,  it  is  too  much  to  expect  that  an 
adversary  will  deliberately  expose  the  weakness 
of  his  own  case  by  answering  in  the  quietude  of  his 
own  office,  and  under  the  direction  of  his  own  counsel, 
leading  questions  propounded  by  the  advocate  on  the 
other  side.  Moreover,  the  practice  is  sometimes  a 
dangerous  one.  An  advocate  may  very  easily  \a,y 
bare  the  weakness  of  his  own  case  while  he  is  seeking' 
that  of  his  opponent.  His  earnest  and  repeated  ques- 
tioning on  certain  points  tends  to  show  that  he  is  on 
a  fishing  expedition,  and  is  an  implied  intimation  that 
he  is  ignorant  of,  or  has  not  sufficient  proof  of,  these 
particular  features  of  his  case.  Such  questioning 
also,  if  carried  too  far,  prepares  the  witness  in 
advance  for  cross-examination  on  trial.  A  cross- 
examination  that  can  be  prepared  for  months  ahead 
will,  most  generall}^  be  barren  of  results. 

Interrogatories,  in  order  not  to  be  dangerous  to 
the  party  asking  them  and  possibly  valuable,  should  be 
very  brief,  cover  all  the  various  topics  of  the  case,  so 
as  to  disarm  suspicion  and  lay  absolutel3'  no  emphasis 
on  any  particulai'  phase  of  the  examination.  In  such 
case  a  defendant  may  so  far  forget  himself  as  to 
enter  into  long  explanations  of  the  sliort  and  diffi- 
cultly answered  questions  thus  submitted.  If  he 
does,  the  adv^ocate  will  be  furnished,  if  not  with 
additional  evidence,  at  least  witli  enough  serious 
(2) 


18  AMERICAN  ADVOCACY. 

admissions  on  the  part  of  his  opponent  to  embarrass 
the  latter  very  much  on  cross-examination. 

Answering  interrogatories  will  seem  from  what  we 
have  said  to  be  a  simple  matter.  So  it  is,  if  care  is 
observed  in  certain  particulars.  Fust:  The  questions 
propounded  should  be  answered  briefly.  The  advo- 
cate should  not  go  at  all  into  details  or  show  in  the 
slightest  degree  his  plan  of  defense.  Second:  Every 
question  should  be  answered  with  candor  and 
accuracy.  Nothing  is  so  fatal  before  a  jury  as  evasion 
or  attempted  evasion,  unless  it  be  deliberate  inac- 
curacj^  of  statement.  Third:  The  advocate  should 
not  argue  his  case  with  his  opponent  in  answers  to 
interrogatories  propounded,  nor  show  the  slightest 
interest  or  feeling  in  respect  to  any  particular  ques- 
tion; for,  in  the  former  instance,  he  plays  his  best 
cards  in  a  preliminarj-  game  that  does  not  count,  and, 
in  the  latter  case,  he  betrays  his  weak  points  to  the 
enemy  before  the  battle,  and  may  expect  repeated 
and  redoubled  assaults  in  that  direction.  Fourth: 
Every  answer  given  must  stand  the  test  of  cross- 
examination.  Nothing  is  so  embarrassing  and  pro- 
voking as  to  find  oneself  tied  up  on  the  trial  of  a  case 
by  unnecessary  and  equivocal  statements  made  in 
answer  to  interrogatories  submitted  before  trial. 

§  12.  What  to  do  With  Weak  or  Dangerous  Points  in 
the  Line  of  Battle. — Should  a  point  which  tells  against 
a  party  be  ignored  by  liim  in  preparing  for  trial? 
Emphatically  no.  F^ird:  Because,  the  judge  or 
jury  will  not  ignore  it.  To  them  this  point  will  stand 
out  as  a  great  obstruction,  and  conceal  all  the  other 
phases  of  the  case,  and  the  disappointment  will  be 
keen  if  the  advocate  fails  to  remove  it.  His  failure 
in  this  regard  will  also  raise  a  suspicion  of  conceal- 
ment against  him,    beside  which   there  is  no  more 


PREPARATION  FOR  TRIAL  19 

damaging  impression  which  an  attorney  can  arouse 
in  the  minds  of  the  jury  trying  his  case.  Seoond: 
Because  such  a  point  is  not  often  absolutely  insur- 
mountable. It  may  not,  possibly,  be  successfully 
contradicted,  but  its  value  as  evidence  raa}^  be 
very  materially  diminished  by  a  clear  explanation 
and  a  bold  assault  upon  it.  Evidence  of  surrounding 
circumstances,  also,  may  serve  to  obscure  and  cover 
up  the  point  so  that  it  no  longer  stands  out  so  prom- 
inently in  the  mind  of  the  judge  or  jury.  It  must 
also  be  remembered  that  these  dangei-ous  points^ 
so  called,  are  often  based  solely  on  circumstantial 
evidence,  and  evidence  of  that  character,  however 
strong,  is  not  held  in  favor  bj^  juries.  Let  the  advo- 
cate, therefore,  approach  it  confidently  and  without 
fear  or  concealment. 

§  13.  Reading  "Up"  the  Law  of  the  Case.  —  Up  to 
this  juncture  the  advocate's  examination  of  the 
law  governing  his  suit  has  been  superficial,  and 
has  been  guided  by  his  general  preparation  be- 
fore referred  to;  now,  he  should  begin  to  read 
up  on  his  case,  holding  his  mind  open  to  new 
impressions  and  suggestions.  Hei*e  he  will  expe- 
rience one  of  the  keenest  delights  of  practical  legal 
study,  when  some  chance  remarks  of  a  court  or 
the  facts  of  a  reported  case  suddenly  send  a  flash  of 
light  upon  his  inquiry,  and  he  sees  a  bright,  fresh 
argument  of  which  he  had  not  even  dreamed.  The 
attorney  should  first  read  his  own  state  reports  aijd 
statutes,  for  many  young  lawyers  who  have  pursued 
their  studies  at  an  institution  where  reports  of  one 
particular  state  are  most  frequently  cited,  acquire 
an  undue  friendliness  toward  such  reports,  and  are 
reluctant  to  have  recourse  in  the  first  instance  to 
those  of  their  own  jurisdiction,  preferring  to  begin 
their  researches  among  cases  far  from  home.     In  his. 


20  AMERICAN  ADVOCACY. 

investigations  the  advocate  should  trj-  to  forestall  his 
adversary's  arguments,  and  be  prepared  to  meet  and 
match  them,  since  he  is  a  poor  lawyer  who  can  see 
only  one  side  of  a  case.  Finall}^  when  he  has 
exhausted  the  law  in  his  researches  and  has  caught 
and  chained  every  legal  argument  which  the  facts 
suggest  or  afford,  he  should  cull  out  a  few  of  the 
strongest,  clearest  and  most  convincing  ones  and 
throw  his  entire  weight  upon  them,  avoiding  the 
folly  of  elaborating  a  long,  involved  argument  in 
which  he  clutches  at  every  straw  and  splinter  that 
floats  within  his  reach.  The  advocate  should  let  all 
hair-splitting  and  scholasticism  go;  he  should  give 
forth  great  masses  of  light  and  strive  for  sti'ength 
and  ~ clearness ,  not  prettiness;  conviction,  not  inge- 
nuity. 

§  14.  Preparation  of  Address  to  the  Jury. — Thus 
far  we  have  dealt  with  the  argument  on  the  law  side 
of  the  controversy.  Much  the  same  method  will  be 
pursued  in  discovering  arguments  hy  which  the 
advocate  seeks  to  prove  to  the  ^vy  the  existence  or 
jion-existence  of  some  fact  in  dispute.  He  will  never 
forget  that  he  is  addressing  unlearned  men,  men  who 
rare  unaccustomed  to  reason  deeply  or  to  hold  a  long 
train  of  arguments  in  their  memories.  What  they 
•can  comprehend  must  be  simply  and  plainly  told. 
The  advocate  should  ask  himself  what  arguments 
would  appeal  to  the  ordinary'  man,  and  use  these 
rather  than  others  which  are  fanciful  and  abstruse. 
The  advocate  should  speak  with  a  plan  in  his  mind. 
Nothing  is  easier,  for  there  are  three  great  divisions 
under  which  may  be  included  all  he  cares  to  say  in  an 
.argument  upon  the  facts  before  courts  or  juries :  F.irst: 
the  rigJit  (the  law  of  the  case).  Second:  The  nwong 
<(a  discussion  of  the  evidence  and  what  it  proves). 
Third:    The  reined (/  (what  verdict  ought  the  jury  to 


PREPARATION  FOR  TRIAL.  21 

render  in  the  light  of  the  law  and  the  facts)?  Thus 
every  ease  may  be  argued  according  to  the  syllogism 
— the  major  premise  being  "the  law,"  the  minor 
premise  "the  evidence,"  and  the  conclusion  "the 
redress."  The  form  of  the  whole  argument  is  as 
follows:  "The  rule  of  law  is  this:  the  facts  of  the 
case  are  these,  and  bring  it  within  the  rule  stated ; 
therefore,  the  plaintiif  is  entitled  to  recover."  Then 
let  the  advocate  shut  himself  in  his  room  and  speak 
his  entire  argument  aloud  to  an  imaginary  jury, 
exactly  as  he  intends  to  deliver  it  in  open  court. 

§  15.  The  Three  Cardinal  Requisites. — In  all  his  labors, 
the  advocate  should  observe  three  cardinal  requisites: 
method,  concentration  and  enthusiasm.  Without  the 
first,  his  efforts  will  be  spasmodic  and  abortive.  He 
will  feel  that  he  is  accomplishing  little,  and  discour- 
agement and  listlessness  will  sap  his  strength.  But 
where  his  work  proceeds  according  to  system,  it 
acquires  a  momentum  carrying  it  on  to  its  consum- 
mation, while  the  energy  expended  is  proportionately 
conserved.  To  the  task  in  hand  the  lawyer  must 
bend  his  attention  with  an  iron  determination.  For 
him,  nothing  in  the  world  is  so  important  as  the 
work  before  him.  Into  it,  he  must  put  his  whole 
being.  With  this  strain  of  the  mind  must  co-operate 
an  enthusiasm  for  the  undertaking  which  is  proof 
against  interruptions  and  undaunted  by  difficulties. 
It  must  buoy  his  spirit  and  quicken  his  wit,  until  he 
beholds,  lying  completed  before  him  the  task  from 
which  he  shrank,  but  which  has  yielded  to  his  perse- 
verance. Never  for  one  instant,  will  he  indulge  the 
fatal  desire  to  perform  first,  that  which  is  easy  and 
agreeable,  leaving  the  stern,  hard  problems  to  await 
a  more  convenient  season.  Intricate  or  easy,  repel- 
lant  or  attractive,  each  will  be  solved  as  it  presents 


22  AMERICAN   ADVOCACY. 

itself,  zealously,  systematicallj^  and  with  unwavering 
purpose.^ 

'  When  asked  his  rule  of  work,  the  late  Lord  Eussell  answered  as 
ollows :  "If  voii  ask  nie  to  reduce  the  common  habit  of  my  life  to 
ormula,  I  will  tell  you  that  I  have  only  four  rules  to  guide  me  in  pre- 
paring my  work — first  to  do  one  thing  at  a  time,  whether  it  is  reading 
or  eating  oysters,  concentrating  such  faculties  as  I  am  endowed  with 
upon  what  I  am  doing  at  the  moment;  second,  when  dealing  with  com- 
plicated facts,  to  arrange  the  narrative  of  events  in  the  order  of  time. 
My  third  rule  is  never  to  trouble  myself  about  authorities  supposed  to 
bear  on  a  particular  question  until  I  have  accurately  and  definitely 
ascertained  the  precise  facts;  and,  lastly, I  try  to  apply  the  judicial  fac- 
ulty to  the  case  before  me,  in  order  to  determine  what  are  its  strong  and 
weak  points,  and  to  settle  in  my  own  mind  on  what  the  issue  depends."' 


CHAPTER  II. 


OPENING   plaintiff's  CASE. 


§  16. 
17. 

18. 

19. 

20. 


§  21.  Order  and  Arrangement  of 
Facts'  in  Opening  State- 
ment. 

22.  Moderation      in      Opening 

Statement. 

23.  Length   of    Opening  State- 

ment. 


Confidence  in  liis  Case. 

Narration  not  Argument  in 
Opening  Statement. 

Anticipating  Defendant's 
Case. 

Redundancy  of  Expression 
in  Opening  Statement. 

Ornamentation  and  Illus- 
tration in  Opening  State- 
ment. 

§  16.  Confidence  in  His  Case. — The  first  thing  for 
the  advocate  to  do  in  opening  his  case  is  to  impress 
the  jury  with  the  idea  that,  at  least,  he  believes  in  it 
himself  .This  may  seem  almost  too  obvious  a  truism 
to  mention,  and  no  doubt  it  is  present  to  the  mind  of 
every  advocate.  We  all  know  it,  or  believe  we  do. 
The  youngest  student  will  say:  "Of  course  j^ou  must 
make  the  jury  believe  that  you  think  your  case  is  an 
honest  one.  Everybody  knows  that."  Granted;  but 
it  is  not  the  simply  knoinhuj  it,  but  a  very  different 
thing,  viz.,  the  niaking  the  jury  believe  thU.  There 
are  those  whose  manner  is  such  that  they  scarcely 
ever  seem  to  believe  in  their  own  case.  A  want  of 
seriousness  has  characterized  their  tone  and  lan- 
guage. This  is  a  fatal  blunder  of  style.  There  is 
nothing  which  a  jury  so  much  detests  in  the  person 
addressing  them  as  an  air  of  jaunty  frivolity. 


24  AMERICAN   ADVOCACY. 

§  17.  Narration  Not  Argument  in  Opening  Statement, 

— What  is  real]}^  required  in  the  plaintiff's  opening  of 
his  case  is  a  simple  well- told  narrative  of  the  facts. 
The  fewer  words  the  better,  and  the  less  argument 
the  more  likel}^  is  a  plaintiff's  statement  to  be  be- 
lieved. It  must  seem  a  strange  story  to  the  jury  if 
it  requires  arguing  upon  before  the  other  side  have 
had  a  syllable  to  sa}^  in  contradiction!  An  advocate 
will  sometimes  in  his  opening,  as  though  he  were 
stumbling  among  improbabilities  at  every  step, 
assert  that  the  plaintiff  was  on  his  proper  side  of  the 
way,  and  that  he  will  convince  them  that  that  j/iusi 
have  been  so,  because,  etc.,  etc.  This  is  as  bad  as  an 
opening  can  be,  because  it  casts  a  doubt  at  the  very 
commencement  upon  the  truth  of  his  own  stor3\  The 
best  reason  for  the  jur^^'s  believing  the  plaintiff's 
story  before  contradiction  is  that  his  witnesses  swear 
to  it.  When  the  other  side  shall  have  brought  facts 
in  conflict  with  it,  the  plaintiff's  time  of  argument 
will  have  arrived,  and  his  arguments  will  have  a 
freshness  which,  if  used  before,  the}"  would  not 
possess ;  they  will  work  as  if  their  edge  had  not  been 
taken  off  by  a  clumsy  exhibition  when  there  was 
nothing  to  cut.  When  there  is  no  grist  the  miller 
stops  his  mill.  Another  advantage  to  the  plaintiff 
from  not  arguing  too  soon  is  that  his  adversary  is  not 
able  to  turn  his  arguments  against  him,  nor  adapt 
his  own  in  accordance  with  the  plaintiff's  theories. 
At  the  expense  of  repetition,  this  point  is  impressed 
upon  the  student's  attention,  because  it  is  of  the  great- 
est importance;  a  good  cause  may  be  thrown  away 
bj"  a  weak  and  indiscreet  opening. 

§  18.  Anticipating  Defendant's  Case. — There  is  an- 
other evil — not  the  least  under  the  sun  in  advocacy 
—  which  consists  in  constantly  anticipating  your 
opponent's  case.     It  is  a ,  similar   fault  to  that  of 


OPENING  plaintiff's  CASE.  25 

plaintiff  arguing  in  defense  of  his  assertions  before 
they  are  attacked,  but  a  trifle  perhaps  more  danger- 
ous. Some  advocates  think  it  proper  to  anticipate 
the  defense  and  demolish  it  at  once.  This  would 
doubtless  be  an  excellent  mode  of  warfare  if  he 
could  accomplish  it.  But  the  law  gives  the  defend- 
ant the  right  to  present  his  case,  and  after  that  has 
been  done,  it  then  becomes  the  plaintiff's  duty  to  de- 
molish it.  Even  if  the  advocate  knows  the  exact  line 
the  defendant  is  going  to  take,  it  is  not  always  advis- 
able to  meet  him  half-way.  But  in  ninety-nine  cases 
out  of  a  hundred  he  does  not  know  the  manner  in 
which  the  latter's  case  will  be  presented,  although  he 
may  know  what  his  defense  is.  After  he  has  opened  it 
and  employed  his  arguments,  the  plaintiff  knows  the 
exact  line  defendant  has  taken;  and  if  he  cannot  beat 
him  then,  it  is  quite  certain  he  could  not  have  done 
so  before.  One  often  hears  an  advocate  say,  "he 
cannot  conceive  what  defense  his  learned  friend  can 
have" — that  "it's  really,  gentlemen,  an  undefended 
case."  It  is  impossible  to  conceive  of  anything 
more  unskillful  and  ineffective  than  this.  Such 
assertions  are  worse  than  useless.  Thej'^  are  no  part 
of  the  opening;  they  are  not  argument;  they  lend  no 
emphasis  to  the  statement;  and  they  are  not  true. 
They  impress  neither  judge  nor  jury;  but  they  some- 
times make  the  counsel  who  utters  them  look  ex- 
tremely disappointed.  If  the  learned  gentleman  on 
the  other  side  has  no  case,  it  will  appear  without 
plaintiff's  attorney  saying  so.  If  he  has  a  case,  the 
plaintiff  saying  he  has  none  will  not  alter  the  fact. 

^  19.  Redundancy  of  Expression  in  Opening  State- 
ment.—  It  would  be  out  of  place  to  say  anything 
further  with  regard  to  redundancy  of  expression, 
were  it  not  a  prominent  fault  with  many  young  advo- 
cates.    The  fewest  words,  as  a  rule,  make  the  best 


26  AMERICAN  ADVOCACY. 

speech.  All  the  language  not  required  to  convey 
ideas  is  surplusage,  and  if  wsed  at  all,  should  be  of 
the  very  best;  if  not  required  for  use,  it  should  be 
employed  for  the  purpose  of  lending  dignity  or  em- 
bellishment. It  may  be  said  that  baldness  of  ex- 
pression is  not  compatible  with  excellence.  It  is 
quite  true  that  the  graces  of  eloquence  lend  a  charm 
to  the  speaker  as  well  as  the  speech.  These  doubt- 
less should  be  cultivated  and  employed  when  in  a 
state  of  cultivation,  but  not  before.  Redundancy, 
however,  is  not  a  grace,  but  a  deformity,  and  the 
way  to  cultivate  that  is  to  cut  it  off  altogether. 
Poverty  of  language  is  one  thing,  selection  of  words 
another,  and  there  msLj  be  the  greatest  poverty  of 
language  with  the  greatest  redundancy  of  words. 

§  20.  Ornamentation  and  Illustration  in  Opening 
Statement. — Of  course  no  one  would  say  that  orna- 
mentation is  to  be  ignored.  On  the  contrar3^  it 
should  be  carefully  used,  not  laid  on  so  as  to  smother 
that  which  it  should  render  more  attractive.  But 
even  diamonds,  scarce  and  valuable  though  they  be,- 
are  frequently  out  of  place  by  way  of  .embellishment. 
Illustration  sparingly  employed  is  an  effective  orna- 
ment; an'd  so  much  so,  that  there  is  of  ten  a  danger 
of  even  truth  and  reason  being  sacrificed  to  it. 
Minds  are  apt  to  be  carried  away  by  a  beautiful 
simile,  and  because  that  is  true,  are  prone  to  con- 
sider that  the  argument  illustrated  must  be  true 
also.  But  in  an  opening  speech  illustration  should 
be  utterly  abandoned.  Fact,  and  fact  alone,  is  the 
strength  of  an  opening  speech. 

§  21.  Order  and  Arrangement  of  Facts  in  Opening 
Statement. — It  may  be  said  no  one  doubts  that  order 
and  arrangement  are  necessary  to  make  a  good  open- 
ing statement.  It  is  so  true,  that  almost  evei'y  one 
knows  it  and  no  one  denies  it;  but  so  long  as  so  many 


OPENING  plaintiff's  CASE.  27 

advocates  act  as  if  they  did  not  know  it,  and  not  only 
neglect  all  order,  method  and  arrangement,  but  con- 
fuse facts  and  dates  to  the  annoyance  of  judge  and 
jury,  and  to  the  disparagement  of  their  client,  it 
seems  not  unnecessary  to  insist  that  the  strictest 
attention  should  be  paid  to  the  order  of  time,  the 
order  of  facts,  and  the  arrangement  of  causes  and 
effects.  Every  statement  should  be  as  free  from 
confusion  as  if  the  facts  had  been  mapped  out  on 
paper  with  the  utmost  faithfulness.  Every  series  of 
facts  should  be  brought  down  in  the  strictest  order ; 
and  if  there  be  many  series  operating  apart,  but 
exercising  an  influence  upon  the  main  action  of  the 
drama,  they  should  be  brought  down  in  their  natural 
order  and  sequence  until  they  are  all  centered  upon 
the  common  point.  In  the  most  complicated  and 
tangled  circumstances  there  should  be  no  confusion. 
It  is  the  business  of  the  advocate  and  the  art  of 
advocacy  to  separate  them,  and  to  show  their  rela- 
tions to  one  another,  their  bearings  upon  each  other, 
and  their  influence  upon  the  main  action.  Irrelevant 
matter,  therefore,  should  be  carefully  excluded — by 
no  means  so  easy  a  task  as  at  first  sight  appears,  and 
only  to  be  accomplished  by  diligent  study  and 
thoughtful  practice.  What  is  the  isi^ue^  and  upon 
what  evidence  trill  it  depemlf  Determine  that  first 
and  then  the  evidence  will  arrange  itself  almost 
naturally.^ 


'  As  an  instance,  take  the  following  pleadings :  A  endeavors  to  set 
lip  a  lost  will.  He  alleges  that  it  was  made  and  executed  on  a  certain 
day  five  years  agi),  and  that  it  never  was  revolted.  The  defendant  de- 
nies the  making  in  accordance  with  the  re(iuirement8  of  the  statute; 
says  that  the  alleged  testator  was  not  of  sound  mind,  memory  and 
understanding;  that  the  will  was  afterwards  destroyed  while  he  xta»  of 
sound  mind,  memory  and  understanding,  with  the  intention  of  revoking 
it,  and  that  the  plaintiff  is  not  a  legatee.    Now,  it  will  be  obvious  here 


28  AMERICAN  ADVOCACY. 

§22.  Moderation  in  Opening  Statement. — In  opening" 
a  case,  mode  rat  ion  is  more  forcible  than  exaggera- 
tion. The  latter  is  weakness.  To  open  a  strong  case 
is  not  to  prove  it.  What  the  advocate  should  strive  to 
do  is  to  give  the  substance  (somewhat  more  than  an 
outline)  of  the  case  he  intends  to  prove.  This  should 
be  done  so  that  when  the  evidence,  usually  in  dis- 
jointed, and  often  in  widel}^  separated  parts,  is  pre- 


that  many  issues  will  present  themselves;  but  it  may  be  equally  appar- 
ent to  the  counsel  for  the  plaintiff  that  the  whole  question  may  ulti- 
mately resolve  itself  into  this,  whether  some  particular  witness  saic  the  will 
2t  a  particular  time.  This  may  depend  not  upon  the  accuracy  of  the 
witness'  memory,  but  upon  his  credibility.  The  decision,  therefore,  may 
turn  entirely  upon  the  question  as  to  whetiier  a  certain  witness  can  be- 
believed  or  not.  The  execution  may  be  beyond  doubt;  the  sanity  of  the 
testator  up  to  a  certain  time  indisputable;  the  contents  provable  by 
some  draft  or  otherwise;  the  question  of  destruction  or  no  by  the  tes- 
tator, before  a  given  moment,  uncontroverted;  the  insanity  of  the  testator 
from  a  given  time  also  placed  beyond  controversy;  the  issue,  therefore, 
will  resolve  itself  into  the  question  whether  the  instrument  was  in  ex- 
istence between  two  given  periods,  and  that  must  depend  upon  the 
evidence  to  this  fact  of  the  person  who  sate  it  in  the  meantime.  If  he  be 
believed,  verdict  for  the  plaintiff;  if  disbelieved,  for  the  defendant. 
Now,  it  will  be  obvious  that  to  lay  much  stress  upon  those  points  which 
will  be  placed  beyond  all  dispute  as  the  evidence  is  unfolded  would  be 
wasted  energy.  The  facts  should,  of  course,  be  stated  with  due  pre- 
cision and  conciseness,  but  to  dwell  upon  them  would  only  be  wearying 
the  jury  to  no  purpose,  and  diverting  their  attention  from  the  proper 
object  of  inquiry.  The  thing  really  to  be  done  is  to  impress  them  with 
the  reliability  of  the  witness ;  if  they  disbelieve  him, the  a,dvocate"s  case  is 
lost;  therefore,  the  latter  must  guard  him  againsttbe  assaults  of  his  oppo- 
nent, whose  skill  will  be  directed  to  breaking  him  down.  He  will  know^  that 
this  is  the  key  of  his  position.  But  how  is  the  witness  to  be  strength- 
ened? If  he  have  no  corroboration,  must  he  not  stand  by  himself? 
By  no  means.  A  hundred  incidents  in  the  story  to  which  his  witness 
speaks  may  be  corroborated  by  other  testimon}%  and  this  will  tend  to- 
show  his  truthfulness.  He  must  search  for  this  kind  of  corroboration 
when  he  has  no  other,  and  if  he  show  that  he  is  generally  supported 
by  other,  and  it  may  be  totally  independent  witnesses,  upon  points 
which  neither  he  nor  they  deemed  material;  if  he  show  that  the  story 
is  consistent  in  itself,  and  is  likewise  compatible  with  the  probabilitiea 
of  the  case,  he  may  rely  upon  it  that  the  verdict  will  be  his. 


OPENING  plaintiff's  CASE.  29 

sented  piece  by  piece  to  the  jury,  they  may  see  the 
bearings  of  each  upon  that  which  has  gone  before, 
and  afterwards  upon  the  whole,  and  appreciate  its 
value.     But  a  plaintiff  should  never  omit  any  mate- 
rial point  of  his  case  in  the  opening,  because,  besides 
being  occasion  for  a  non-suit,  it  will  generally  be 
received  by  the  jury  in  the  form  with  which  he  im- 
presses it,  and  will  be  accepted  by  them  almost  as 
proof  before  the  evidence  comes  in  support  of  it. 
When  the  evidence  does  come  its  weight  will  often  be 
supplemented  by  the  opening.     Although,  the  facts 
themselves  are  neither   changed    nor    exaggerated, 
they  are  the  more  deeply  impressed.     Suppose  an 
advocate  has  a  number  of  witnesses  to  prove  various 
facts  which  are  separate  and  apparently  disconnected 
from  one  another,  but  yet  having  a  bearing  directly 
or  indirectly  upon  the  main  issue.     These  witnesses 
represent  those  numerous  facts,  which  have  happened 
at  different  times  and  in  different  places,  3^et  which 
are  all  working  towards  a  common  center,  confirming 
and  corroborating  one  another,  leading  up  to,  and 
indeed  forcing  on  the  main  event  of  the  story.     It  is 
obvious  that  in  opening  a  case  of  this  kind,  if  the 
advocate  would  make  the  narrative  clear,  he  must 
deal  completely  with  one  set  of  facts  at  a  time — the 
earliest  in  date  probably  being  the  best  to  comrq^nce 
with.     These  should  be  made  plain  and  intelligible 
to  the  jur)^  merel.y  a-^  facts ^  and  no  attempt  should  be 
made  to  show  their  bearing  upon  the  main  point  of 
the  case  until  the  other  branches  of  the  subject  are 
in  like  manner  made  intelligible.     If  this  be  done  too 
early  the  effect  will  be  lost,  the  narrative  will  be  dis- 
turbed,  and   the  minds  of    the    hearers    confused. 
The  first  set  of  fjicts  should  be  stated  and  left  ready 
to  be  fitted  in  at  the  right  time.     The  jur}'.  having 
thus  seen  the  separate  parts  of  the  plaintiff's  narra- 


30  AMERICAN -ADVOCACY. 

tive,  will  perceive  readily  what  position  each  will 
occupy,  and  what  relation  it  will  bear  to  the  others. 
It  need  scarcely  be  said,  that  if  the  advocate  make 
any  part  out  of  due  proportion  to  the  rest  by  exag- 
geration, it  will  not  fit  in,  and  will  spoil  the  symmetry 
of  the  whole.  He  should  seek  only  to  make  his  state- 
ment appear  truthful  and  natural.  Short  of  this  the 
opening  will  be  a  failure;  bej'ond  it  the  evidence  will 
be  a  failure. 

§  23.  Length  of  Opening  Statement. — It  may  not  be 

superfluous,  in  concluding  this  chapter,  to  say  that  a 
speaker  in  opening  a  case  should  never  be  rapid.  As 
a"  rule  rapidity  of  utterance  is  not  a  common  fault, 
but  there  are  many  who  talk  too  fast,  and  as  a  neces- 
sary consequence  say  too  little.  It  is  difficult  for  all 
who  are  not  the  most  finished  speakers  to  make  a 
sentence,  and  it  is  not  easy  for  juries  to  follow  at  all 
times  deliberate  speakers  who  can -make  one;  but 
what  must  their  difficulty  be  in  following  a  man  who 
speaks  with  great  volubility,  and  never  makes  a 
sentence  at  all?^  Slow,  sure  and  short,  is  a  good 
motto  for  young  advocates.  A  long  opening  is 
wearisome  and  unnecessary,  and  can  only  be  made 
long  b}^  repetition.  Not  that  an  advocate  can  deal 
out  speeches  by  the  yard,  or  cut  them  off  in  lengths 
as  required.  Indeed,  a  speech  may  be  very  long 
that  occupies  twenty  minutes;  it  may  be  admirably 
concise  and  take  six  hours.  The  opening  in  the 
Tichborne  trial  for  perjury  occupied  some  da3^s,  but 
it  is  a  model  of  neatness,  arrangement  and  concise 


1  "Can't  make  header  tail  of  him,"  said  a  juror  after  a  flippantyoung 
lawyer  had  sat  down;  "talks  too  fast."  "What's  the  action  for?"  asked 
another.  "Is  he  for  plaintiff  or  defendant?"  inquires  a  third.  An 
advocate  had  better  not  open  his  case  at  all  if  he  cannot  leare  a  better 
impression  than  this — he  is  simply  injuring  his  client. 


OPENING  plaintiff's  CASE.  31 

narrative.  A  short  speech  is  more  powerful  than  a 
long  one.  When  jurymen  tap  the  ledge  of  their  desk 
with  impatient  fingers,  the  advocate  may  take  it  for 
granted  he  has  been  alread}'^  too  long,  and  every 
additional  word  m'aj  be  not  only  a  burden  to  them, 
but  also  to  his  client.  Consistently,  therefore,  with 
those  graces  of  diction  without  which  language  would 
sometimes  be  offensively  bald,  the  fewer  words  the 
advocate  employs,  the  better.  It  hj  no  means  follows 
that  he  should  speak  in  telegrams,  but  that  mere 
verbiage  should  be  pruned  away,  so  that  there  maj^  be 
greater  strength  and  a  more  symmetrical  and 
cultured  beaut3^ 


CHAPTER  III. 


OPENING  defendant's   CASE. 


24.  General  Eules. 

25.  When   and    Where  to  Open 

the  Attack. 

26.  Effect  of  Argument  in  De- 

molishing Plaintiff's  Case. 

27.  Use  of  Plaintiff's  Witnesses 

to  Prove  Defendant's  Case. 

28.  Force  of  Eloquence  in  De- 

fendant's Opening  Speech. 

29.  Misstatements     and      False 

Kepresentations     by     De- 
fendant. 


30.  Arrangement  of  Facts  With 

Regard  to  Probabilities. 

31.  Artistic     Arrangement     of 

Evidence. 

32.  Answering  Exaggerated  or 

Improbable  Evidence. 

33.  Effect  of  Defendant  Prais- 

ing His  Own  Witnesses. 

34.  Points    of    Rhetoric    to   be 

Observed   by    Defendant's 
Attornev. 


§  24.  General  Rules.  —  If  ever  a  ease  looks  hope- 
less, it  should  be  the  defendant's  at  this  present 
moment.  The  juiy,  if  they  had  to  determine  the 
case  now,  should  be  unanimous  in  favor  of  his  oppo- 
nent. If  the  facts  are  not  strong,  however,  or  the 
counsel  is  not  strong,  or  has  not  made  the  most  of 
his  case,  the  jury  will  be  divided,  but  none  of  them, 
*'very  unanimous"  in  the  plaintiff's  favor.  In  these 
circumstances  the  verdict  for  the  defendant  is  as 
good  as  won.  Disaster  awaits  the  advocate  for  the 
plaintiff  who  has  not  the  jury  with  him  at  this  stage 
of  the  case.  In  a  season  of  such  depression  an  ex- 
traordinary accession  of  good  feeling  will  take  pos- 
session of  the  breast  of  the  plaintiff's  attorne}'. 
Wouldn't  it  be  better  for  all  parties  to  agree  and  an 
amicable  arransrement  be  come  to?     If  the  defend- 


OPENING   defendant's   CASE.  33 

« 

ant's  counsel  be  wise,  he  will  yield  to  no  such  blan- 
dishments. The  flag  of  truce  is  but  the  signal  of 
distress,  and  he  should  push  on  his  advantages  to 
their  legitimate  conclusion.  He  should  not  capitu- 
'late  when  he  has  won  the  battle,  or  surrender 
when  the  enemy  is  in  full  retreat. 

It  is  not,  however,  invariably  the  fact  that  a  weak 
case  for  the  plaintiff  is  at  its  strongest  at  the  close. 
The  defendant's  counsel  frequently  strengthen  it 
materially.  Sometimes,  indeed,  the  cross-examina- 
tion of  his  own  witnesses  absolutely  proves  it.  It 
follows,  therefore,  that  very  great  discretion  and 
skill  are  requisite  in  opening  the  case  for  the  de- 
fendant. It  is  surrounded  with  obstacles,  and  is  a 
far  more  difficult  task  than  opening  that  for  the 
plaintiff. 

§  25.  When  and  Where  to  Open  the  Attack. — The 
first  thing  to  decide  is  at  what  point  to  commence 
the  attack.  A  great  deal  may  depend  upon  this. 
The  advocate  may  expend  much  energy  in  fruitless 
work.  The  weak  places  are  undoubtedly  attractive, 
but,  as  a  rule,  should  be  reserved,  because  at  a  later 
period  the  effect  will  be  greater  and  the  demolition 
appear  to  be  more  complete.  The  strong  points, 
therefore,  should  be  attacked  first,  but  not  by  direct 
blows.  One  cannot  knock  down  a  substantial  wall 
by  butting  his  head  against  it.  There  are  improba- 
bilities and  inconsistencies,  perhaps,  or  partialities 
to  deal  with.  The  advocate  may  possibly  get  at  these 
and  shake  the  very  foundations  on  which  the  whole 
fabric  rests.  If  the  advocate  have  iiccomplished 
anything  by  cross-examination,  it  will  be  of  inestim- 
able service  at  this  period  of  the  case.  But  his 
speech  must  be  directed  first  to  weaken  before  he 
brings  to  bear  the  reserved  forces  which  he  has 
stored  up   as  the  result    of  his  cross-examination. 

3 


34  AMERICAN   ADVOCACY. 

§  26.  Effect  of  Argument  in  Uemolishing  Plaintiff's 
Case. — ^That  which  was  to  be  avoided  in  opening  a 
case  for  the  plaintiff  is  the  strength  of  the  defend- 
ant's opening — namelj^  argument.  It  is  not  meant  to 
affirm  that  one  can  demolish  an  isolated  fact  by 
argument;  but  a  series  of  facts,  some  of  which  may 
be  true  and  some  false,  may  be  made  to  demolish 
one  another.  If  the  defendant's  attorney  can  show 
that,  assuming  all  the  facts  to  be  true,  they  do  not 
necessarily  prove  the  plaintiff's  case,  he  will  have 
gone  a  long  way  to  establish  his  own.  By  this 
mode  of  proceeding  he  will  already  have  dealt  with 
the  strongest  portions  of  the  case  against  him. 
When  he  arrives  at  the  weaker  parts  he  should 
avoid  above  all  things  a  furious  and  vehement 
onslaught;  otherwise  they  will  appear  more  formi- 
dable than  they  really  are.  Let  the  force  be  pro- 
portioned to  the  task.  A  well-worded  argument 
will  be  infinitely  more  effective  than  fiery  declama- 
tion. By  removing  some  of  his  opponent's  points  in 
a  quiet  but  effective  manner,  the  jury  will  believe  the 
defendant's  attorney  must  be  right  with  regard  to 
many  others  that  he  has  not  removed.  He  will  gain 
<3redit  for  a  great  deal  more  than  he  has  actually 
accomplished,  and  his  success  will  have  a  retro- 
spective effect.  In  other  words,  the  more  re- 
spectable facts  will  get  a  bad  character  bj^  being* 
found  in  companj^  with  those  which  the  advocate 
proves  to  be  weak  and  corrupt. 

§  27.  Use  of  Plaintiff's  Witnesses  to  Prove  Defend- 
ant's Case. — It  often  happens  that  a  witness  is  called 
for  the  plaintiff  whose  evidence  is  worthless.  It 
may  not  be  valueless  to  the  defendant.  But  the 
latter's  attorney  should  by  no  means  be  overeager  to 
attack  him.  He  should  be  kept  as  a  surprise  for  the 
end  of  the  advocate's  comments  on   the   plaintiff's 


OPENING   defendant's   CASE.  35 

witnesses,  and  then  be  held  up  above  the  crowd  and 
made  the  principal  figure  in  the  group.  What- 
ever he  has  said  in  the  defendant's  favor,  will,  of 
course,  materially  assist  and  confirm  the  ergument 
of  the  defendant's  attorne}^  The  latter  will,  in  fact, 
be  proving  his  case  by  the  opponent's  witnesses — a 
happy  mode  of  conducting  a  cause  to  a  successful 
conclusion,  when  he  is  permitted  to  do  so.  An 
admission  against  the  party  making  it  possesses  a 
force  which  belongs  to  no  other  class  of  evidence 
except  documentary. 

§  28.  Force  of  Eloquence  in  Defendant's  Opening 
Speech. — A  bad  speech  will  impoverish  the  best  of 
cases.  The  defendant's  case  will  in  all  probability 
be  judged  by  the  speech  with  which  it  is  introduced, 
and  the  first  impressions  are  not  easily  removed. 
On  the  other  hand,  many  a  case  has  been  won  by  the 
opening  speech  for  the  defendant.  Everything 
seemed  to  be  swept  away  before  it,  and  a  clear  field 
left  for  the  evidence  that  was  to  follow.  And  it  may 
be  said,  if  once  the  defendant's  counsel  gets  a  thor- 
ough hold  upon  the  jury  in  his  opening  speech,  the 
case  is  as  good  as  won.  The  evidence  will  appear  to 
be  merely  supplementary,  to  confirm  tiie  jury  in  the 
opinion  they  will  ^ve  formed.  It  is  true  facts  are 
more  powerful  than  argument,  but  when  argument 
iind  eloquence  la}'  hold  of  a  fact  that  is  not  absolutely 
sound,  they  will  press  it  out  of  all  recognition,  and 
dispose  of  it  as  though  it  were  a  bubble.  The  best 
case  may  be  ruined  by  a  bad  speech,  as  a  splendid 
fortune  may  be  thrown  away  by  a  fool ;  while  a  good 
speech  will  impart,  or  appear  to  impart,  to  a  bad  case, 
some  of  its  own  excellences.  There  is  nothing 
of  art  in  the  speeches  of  ordinary  advocates,  but 
where  it  is  judiciously  employed  against  an  advocate 


36  AMERICAN  ADVOCACY. 

who  has  none,  the  result  will  scarcely  be  doubtful, 
other  chances  being  equal. 

§  29.  Misstatements  and  False  Representations  by 
Defendant. — The  fact  of  a  reply  looming  in  the  dis- 
tance should  always  be  borne  in  mind.  The  defend- 
ant's attorney  must  anticipate  it  at  every  step,  and 
so  shape  his  own  arguments  that  they  will  receive  as- 
little  damage  as  possible  from  the  approaching 
simoon.  A  fallacious  argument  is  bad  enough,  but  it 
sometimes  wins;  a  false  one  is  dangerous  and  gen- 
erally fatal.  It  will  place  the  advocate  in  the  position 
of  being  detected  in  an  act  of  deception.  So  will 
opening  a  piece  of  evidence  that  he  cannot  prove,  or 
asserting  that  something  has  not  been  proved  which 
in  reality  has  been.  These  are  blunders  in  advocacy 
which  are  constantl}''  being  made  to  the  detriment  of 
clients ;  not  made  from  want  of  practice,  but  for  lack 
of  studj'ing  advocacy  as  an  art.  When  the  advocate 
commences  to  address  the  jury,  they  will  adjust 
themselves  to  the  task  of  listening  as  though  they 
were  about  to  be  entertained  with  the  second  act  of 
an  amusing  drama.  They  will  readily  3'ield  him  their 
attention,  and  be  curious  to  know  what  answer  he 
will  make  to  all  that  has  been  urged  on  the  other  side. 
They  may  or  may  not  believe  i\M  the  evidence,  but 
whether  they  do  or  not  they  will  accord  the  defend- 
ant's attorney  a  patient  hearing.  But  the  curiosity 
of  the  jurj'-  may  be  quickly  gratifietl.  The  defendant's 
attorney  maj^  lose  their  attention  and  his  case  by  a 
few  sentences,  or  by  hobbling  along  as  though  he 
were  doing  penance  for  his  client. 

§  30.  Arrangement  of  Facts  with  Regard  to  Prob- 
abilities.— Having  disposed  of  the  weaker  points  of 
his  opponent's  case  and  attacked  the  strong  ones  by 
well  arranged  argument,  the  next  duty  of  defendant's 
attorney  will  be  to  present  his  own  facts,  and  in 


OPENING  defendant's   CASE.  37 

doing  this  the  great  rule  to  observe  is  to  armruje  them 
with  due  veijai'd  to  probahilities.  This  is  not  always 
clone;  it  is  sometimes  not  even  thought  of.  The  same 
facts  may  be  so  ill-arranged  that  collateral  circum- 
stances (never  to  be  lost  sight  of,  although  irrelevant 
as  evidence),  may  raise  the  strongest  improbabilities 
against  the  defendant.  On  the  other  hand,  by  a  skill- 
ful arrangement  the  opposite  result  will  be  produced. 
The  effect  of  not  observing  this  rule  will  be  like  the 
false  perspective  in  a  well-known  picture,  where  a 
wagon  is  on  one  side  of  a  bridge,  the  team  on  the  other, 
and  the  carter  driving  them  about  half-a-mile  off. 

§  31.  Proper  and  Artistic  Arrangement  of  Evidence. 
— A  great  deal  will  depend  upon  an  artistic  arrange- 
ment of  defendant's  evidence  at  this  stage;  so  that 
it  may  not  only  stand  out  in  the  best  light,  but  be 
so  placed  that  its  position  ma,y  cast  his  opponent's  as 
much  as  possible  into  the  shade.-  As  before  observed, 
contrast  plays  a  great  part  in  advocacy.  But  mere 
naked  contrast  is  not  all  that  an  attorney  can  make 
of  his  facts  if  they  are  in  contradiction  to  those  of  his 
opponent.  He  will  have  but  half  learned  his  art  if 
he  rests  here.  He  should  contrast  the  opposing  facts 
as  forcibly  as  he  can,  but  so  place  them  that  his  own 
will  appear  to  be  the  more  natural  when  regarded  in 
connection  with  surrounding  circumstances.  The 
next  thing  for  the  defendant  to  do  is  to  introduce  his 
evidence  with  a  vietn  to  effect.^ 

§  32.  Answering  Exaggerated  or  Improbable  Evi- 
dence.— When  defendant's  attorney  has  to  deal  with 


'  Take  an  illustration  (if  not  too  humble)  from  a  well-arranged  shop 
window,  where  many  costly  articles  are  exhibited.  The  arrangement  is 
a  matter  of  art  and  study;  mere  practice  would  not  produce  its  effect. 
It  pleases,  and  one  scarcely  linows  why.  It  is  because  no  one  thing 
offends  the  eye  by  obtruding  itself  upon  one's  notice.    The  harmony 


38  AMERICAN   ADVOCACY. 

evidence  which  is  eccentric  or  absurdly  exa^-gerated, 
he  need  not  labor  as  though  it  were  worthy  of  the 
gravest  consideration,  but  simply  point  out  its  gro- 
tesqueness,  as  though  the  matter  were  worthy  of 
notice  on  that  account  onl}".  If  a  witness  has  sworn 
something  contrarj'  to  all  human  experience,  the 
advocate  need  not  wear}'  the  jury  by  arguing  that 
such  evidence  is  unreliable.  It  is  when  he  approaches 
facts  within  the  range  of  probability,  and  deposed  to 
by  trustworthy  witnesses,  that  his  powers  of  argu- 
ment will  be  put  to  the  test.  Probabilities  must  here 
be  relied  upon,  and  the  smallest  circumstance  will 
often  prove  of  the  greatest  importance.  The  case 
will  resemble  a  puzzle  composed  of  a  number  of 
pieces  which  fit  into  one  another.  If  there  were 
duplicates  of  some  which  did  not  belong  to  it,  one 
would  examine  the  edcjes,  the  color  and  the  grain  of  the 
wood.,  in  order  to  detect  the  true  from  the  false.  In 
like  manner  the  defendant's  attorney  must  deal  with 
the  facts  of  his  opponent's  case  where  they  conflict 
with  his,  and  yet  seem  to  fit  in  with  surrounding  cir- 
cumstances. 

§  33.  Effect  of  Defendant  Praising  His  Own  Wit- 
nesses.— If  the  defendant's  witnesses  are  respectable, 
his  attorne}'  need  not  detract  from  their  respecta- 
bility by  over-proclaiming  it.  The  jury  will  believe 
the  witnesses  to  be  ordinarily  respectable  unless  the 
advocate  take  overmuch  pains  to  convince  them  of  it. 
It  is  only  counterfeit  character ,  like  counterfeit  beauty, 
that  requires  a  good  deal  of  touching  up.    WJien  a  good 


produced  by  the  artistic  arrangement  is  such  that  the  leading  objects 
attract  attention  icithont  appearing  to  do  so,  a  id  are  set  off  b>/  the  sur- 
rounding articles.  There  is  no  crowding,  and  everything  is  displayed. 
If  the  defendant's  attorney  can  as  artistically  arrange  his  evidence  in 
his  speech,  it  will  produce  an  effect  that  will  not  be  easily  removed. 
The  very  "setting  out"'  of  his  case  may  win  it. 


OPENING  DEFENDANT-'S   CASE.  39 

witness  is  cross-examined  as  to  character,  it  is  as  good  as 
vouched  for  by  the  other  side.  If  one  saw  a  man  bein^ 
led  down  Fleet  street  by  another  who  kept  shouting, 
"Here's  an  honest  man!  Look  at  this  honest  man!" 
he  would  suspect  the  pair  of  some  roguish  design 
upon  his  credulity.  The  worst  recommendation  a 
man  can  have  is  too  much  praise,  and  there  is  no 
worse  advocacy  than  making  a  person  impossibly 
good. 

§  34.  Points  of  Rhetoric  to  be  Observed  by  Defedant's 
Attorney. — The  advocate  should  avoid  parentheses  as 
much  as  possible;  but  if  he  employ  one,  let  it  be  for 
the  purpose  of  emphasis.  It  requires  some  skill  (not 
so  much  the  skill  that  comes  of  practice,  but  that 
which  is  produced  by  careful:  study)  to  do  this  effect- 
ively. If  done  well,  his  parenthesis  will  stand  out 
like  the  principal  object  of  a  brilliant  pyrotechnic  dis- 
play; but  if  ill-performed,  it  will  be  more  like  a  damp 
centerpiece,  which  becomes  a  failure  and  the  darkest 
spot  of  all. 

The  best  worded  sentence  he  can  form  should  end 
the  speech  of  the  defendant's  attorney.  A  pleasant 
rhetorical  flourish  is  always  acceptable,  while  a  well- 
constructed  peroration  has  many  redeeming  qualities. 
It  will  smooth  over  many  a  rugged  point  that  has 
discovered  itself  during  the  progress  of. his  speech, 
and  hearers  often  persuade  themselves  that  that  is  a 
good  address  which  ends  >vell.  Nor  should  it  be  for- 
gotten that  speaking  does  not  consist  in  mere  words; 
the  effect  produced  on  the  mind  by  a  piece  of  real 
oratory  is  a  succession  of  images.  Men  do  not  hear 
a  great  speech  so  much,  as  they  see  and  feel  it. 

It  is  not  meant  that  a  jury  should  be  artificially  or 
hysterically  excited,  but  that,  by  a  proper  employ- 
ment of  art,  the  advocate  should  cause  them,  not 
merely  to  hear   what  he  says',  but  to  perceive  the 


40  AMERICAN   ADVOCACY. 

picture  passing  through  his  own  mind,  and  to  be 
quickened  with  the  impulse  of  his  own  sensations. 
This  is  the  art  of  opening  the  defendant's  case.  If 
effectively  performed,  the  latter 's  attorney  need  not 
fear  the  reply,  although  he  will  utter  no  syllable 
without  a  thoughtful  regard  to  it. 


CHAPTER  IV. 


EXAMINATION  IN  CHIEF. 


§  35. 


36. 


37. 


38. 


39. 


All  of   the  Facts  Must  be 

§40. 

Cross  -  Examining       One's 

Elicited. 

Own  Witness. 

The  Fewest  Possible  Ques- 

41. 

Cautioning  Witnesses  About 

tions  and  Interruptions. 

Rules  of  Evidence. 

Proper  and  Improper  Ques- 

42. 

Leading  a  Witness. 

tions. 

43. 

Unnecessary  Rapidity  and 

Irritable  and  Unintelligible 

Repetition. 

Questioning. 

44. 

Verbose    Questions    to    be 

Order  of  Time  to  be    Ob- 

Avoided. 

served    in  Eliciting   Evi- 

dence. 

. 

§  35.  All  of  the  Facts  Must  be  Elicited. — One  of  the 
most  important  branches  of  advocacy  is  the  examina- 
tion of  a  witness  in  chief.  One  fact  should  be  remem- 
bered to  start  with,  and  it  is  this:  the  witness 
whom  an  advocate  has  to  examine  has  probably  a 
plain,  straightforward  storj^  to  tell,  and  that  upon 
the  telling  it  depends  the  belief  or  disbelief  of  the 
jury,  and  their  consequent  verdict.  If  it  were  to  be 
told  amid  a  social  circle  of  friends  it  would  be  nar- 
rated with  more  or  less  circumlocution  and  con- 
siderable exactness.  But  all  the  facts  icouhl  come  out; 
and  that  is  the  first  thing  to  insure  if  the  case  be  an 
honest  one.  It  has  sometimes  occurred  that  half  a 
story  is  told,  and  that  the  worst  half,  too,  the  rest 
having  to  be  got  out  by  the  attornej'  in  re-examina- 
tion, if  he  have  the  opportunity.  Events  follow  one 
another  in  a  natural  course;  and  as  one  is  often  the 


42  AMERICAN"  ADVOCACY. 

cause  and  another  the  effect,  the    most   important 
results  may  depend  upon  the  merest  trifle.^ 

§  36.  The  Fewest  Possible  Questions  and  Inter- 
ruptions.— Now,  the  best  thing  the  advocate  can  do, 
on  examination-in-chief,  is  to  remember  that  the  wit- 
ness has  sometliing  to  tell,  and  that  but  for  him,  the 
advocate,  would  probably  tell  it  very  well,  "in  his 
own  way."  The  fewer  interruption^^  therefore^  the 
better;  and  thefeioer  qjiestioiis,  the  less  questions  will  be 
needed.  Watching  should  be  the  chief  work;  especi- 
ally to  see  that  the  stor}^  be  not  confused  with  extra- 
neous and  irrelevant  matter.  The  chief  error  the 
witness  will  be  likely  to  fall  into  will  be  hearsa}"  evi- 
dence, either  he  saj^^s  to  somebody,  or  somebody  says 
to  him  something  which  is  inadmissible  and  delays 
the  progress  of  events.  But  the  witness  being  very 
nervous,  the  attorney  must  be  careful  how  he  checks 
the  progress  of  his  "he  says  says  he's,"  or  he  may 
turn  off  the  stream  altogether.  The  advocate  should 
pass  him  over  those  parts  as  though  he  were  franking* 
him  through  a  turnstile,  and  then  show  him  where  he 
is ;  or  as  if  he  were  putting  a  blind  man  with  his  face 
in  the  direction  he  wished  to  go,  and  then  left  him  to 
feel  his  way  alone.     As  far  as  possible,  the  witness 

1  Take  the  familiar  "running-down  case."  Two  vehicles  come  into 
collision,  and  the  respective  drivers  no  less  so  in  their  evidence.  Each 
throws  the  blame  on  the  other,  and  if  both  were  believed,  there  could 
have  been  no  accident  at  all,  because  each  would  have  been  upon  his 
proper  side  of  the  road  close  to  the  curb,  with  the  whole  width  of  the 
road  between  them.  They  cannot,  therefore,  both  be  accurate.  Other 
witnesses  give  other  impossible  stories.  The  very  position  of  the 
vehicles  after  the  accident  may  be  a  disputed  point,  and,  therefore,  no 
assistance  to  the  jury.  But  there  may  be  a  very  trifling  scratch  or 
indentation  on  a  wheel  or  a  shaft  which  may  be  all-important;  and 
what  it  was  produced  by  may  be  more  important  still.  Its  direction 
and  shape  may  also  be  material.  This  will  show  how  necessary  it  is  in 
examination-in-chief  to  get  out  every  fact,  however  trifling,  that  may 
be  of  importance  to  the  examiner's  easel 


EXAMINATION  IN   CHIEF.  43 

should  be  pei'mitted  to  tell  his  own  story^  with  as 
little  interruption  from  the  advocate  as  possible,  and 
in  all  probability^  he  will  tell  it  well  enough  if  the 
exaliiiner  does  not  confuse  him  with  his  brief.  If  the 
examiner  finds  that  witness  is  omitting  a  material 
point,  his  duty  will  be  to  bring  him  to  it  at  once. 
Sometimes,  however,  in  the  midst  of  an  important 
answer  a  witness  is  very  often  interrupted  b}^  a 
frivolous  question  upon  something  utterly  imma- 
terial. This  seems  so  absurd  on  paper  that  it  needs 
an  example.  A  witness  is  giving  an  answer  when 
some  such  question  as  this  is  interposed:  "What 
time  was  this?"  or,  "Had  you  seen  Mr.  Smith  before 
this?"  A  question  is  often  left  half  answered  by 
such  interruptions,  the  better  half  perhaps  being 
untold.  "He  never  asked  me  about  that,"  sa3"s  the 
witness  after  the  case  is  over;  or,  "I  could  have 
explained  that  if  he  had  let  me."  If  the  question  be 
material,  by  all  means  let  the  answer  be  taken  down ; 
if  immaterial,  it  ought  not  to  have  been  asked;  but 
once  asked,  the  examiner  had  better  have  the  answer, 
lest  something  should  be  inferred  against  him.  All 
unnecessary  interruptions  produce  confusion  in  the 
mind  of  the  witness  and  jury,  and  tend  to  the  damage 
of  the  advocate's  case. 

§  37.  Proper  and  Improper  Questions. — The  most 
useful  questions  for  eliciting  facts  Jire  the  most  com- 
mon-place, "What  took  phice  next?"  being  infinitely 
better  than  putting  a  question  f  I'om  the  narrative  in 
the  examiner's  brief  of  the  facts,  which  leads  the 
witness  to  contradict  him.  The  interrogative  "Yes?" 
as  it  asks  nothing,  and  yet  ever^'^thing  is  better  than 
a  rigmarole  phrase,  such  as^,  "Do  you  remember 
what  the  defendant  did  or  said  upon  tliat?"  The  wit- 
ness after  such  a  question  is  generally  puzzled,  as  if 
the  examiner  were  asking  him  a  conundrum  which 


44  AMERICAN   ADVOCACY. 

is  to  be  passed  on  to  the  next  person  after  he  has 
given  it  up.  Judges  frequently  rebuke  lawyers  for 
putting  a  question  in  this  form:  "Z><9  yo^i  renieinher 
the  29th  of  Fehruary  Iw^tf''  In  the  first  place,  it  is 
not  the  day  that  has  to  be  remembered  at  all,  and 
whether  the  witness  recollects  it  or  not  is  imma- 
terial. It  is  generally  the  facts  that  took  place  about 
that  time  he  wants  deposed  to,  and  if  the  date  is  at 
all  material,  he  is  putting  the  question  in  the  worst 
possible  form  to  get  it.^  Many  a  good  case  has  been 
lost — and  many  more  will  be — by  clumsy  questions 
of  this  kind  at  the  commencement  of  a  witness' 
examination.  If  the  examiner  leave  the  latter 's  mind 
in  a  state  of  bewilderment  and  confusion,  his  work 
will  only  need  to  be  followed  up  by  a  well-delivered 
question  or  two  in  cross-examination  to  demolish  the 
whole  of  his  evidence. 

§  38.  Irritable    and    Unintelligible    Questioning. — It 

may  seem  unnecessary  to  observe  that  no  sign  of 
irritability  should  be  manifested  towards  the  witness. 
If  he  be  stupid  the  examiner's  vexation  will  by  no 
means  assist  him,  nor  will  a  sharp  rebuke,  such  as 
one  too  often  hears  administered.  The  more  stupid 
he,  the  more  patient  should  the  advocate  be.  A  stick 
is  a  bad  thing  to  help  a  lame  dog  over  a  stile  with, 
and  further,  the  stupidity  is  not  always  on  the  side 
of  the  witness.     Every  question  should  nctt  only  be 


^  S  ippose  a  lawyer  ask  a  witnoss  if  he  remembers  the  10th  of  Jimo. 
1874;  he  probably  does  not,  and  both  he  and  the  advocate  arc  bewil- 
dered, and  think  they  are  at  cross-purposes;  but  let  the  lawyer  ask  him 
if  he  was  at  Niagara  in  that  year,  and  he  will  get  the  answer  without 
hesitation;  let  him  inquire  when  it  was,  and  the  witn^'ss  will  tell  him 
the  10th  of  June.  In  this  way  the  examiner  will  avoid  taxing  a  witness' 
rfaemory;  always  a  dangerous  proceeding,  and  much  more  within  the 
province  of  cross-examination  than  examination -in -chief. 


EXAMINATION   IN    CHIEF.  45 

intelligible  and  relevant  in  itself,  but  it  should  be  put 
in  such  a  form  that  its  relevancy  to  the  case  ma}'^  be 
apparent  to  him.  A  question,  without  being  leading, 
should  be  a  reminder  of  events  rather  than  a  test  of 
the  witness'  recollection.^ 

§  39.  Order  of  Time  to  be  Observed  in  Eliciting  Evi- 
dence.— It  is  a  cardinal  rule  in  examination-in-chief, 
that  in  examining  a  witness  the  order  of  time  ought 
always  to  he  observed.  While  a  witness  is  telling  his 
story  in  a  natural  manner  (which  he  will  generally  do 
if  left  to  himself,  and  with  due  attention  to  the  order 
of  time),  counsel  suddenly  breaks  in  with  some  such 
observation  as  this:  "One  moment, — What  was  said 
when  you  spoke  to  the  defendant?"  The  thread  of 
the  story  is  immediately  broken,  the  judge  is  angry, 


1  The  following  is  an  instance :  A  man  brings  an  action  against  a 
railway  company  for  false  imprisonment.  The  facts  are  these :  He  lost 
his  ticket  and  refused  to  pay ;  the  porter  on  the  platform  called  the 
inspector,  who  sent  for  a  policeman,  and  then  gave  him  into  custody. 
The  best  way  not  to  get  the  facts  out  is  to  examine  him  in  the  following 
manner:  "Were  you  asked  for  your  ticket? — Yes.''  "Did  you  produce 
it? — No."'  "Why  not? — I  had  lost  it."  "Are  you  sure  you  took  it? — 
Quite."  ''Positive?  (This  is  a  good  opening  for  the  wedge  of  cross- 
examination — a  doubt.thrown  on  the  lawyer's  own  witness.) — lam  quite 
sure.''  "What  did  the  defendants  say  then;  I  mean  the  porter?"  (This 
blunder  ought  not  to  have  been  made.)  At  this  point  the  witness  is  in  a 
hopeless  muddle,  and  says: — "I  was  given  into  custody." 

Tlie  story  is  not  half  told,  although  it  is  one  of  the  simplest  to  tell. 
Now  the  counsel  contradicts,  by  way  of  explanation,  and  says:  "No, 
no;  do  attend."  Witness  strokes  his  chin  as  though  about  to  be  shaved. 
Judge  glances  at  him,  and  wonders  if  he  is  lying.  Counsel  for  the 
defendants  (sure  to  be  eminent)  suiile,  and  the  jury  look  knowingly  at  one 
another,  and  begin  to  think  it  a  trumped-up  attorney's  action. 

Now,  start  again  with  another  question : — "When  the  train  stopped, 
you  got  out? — I  didn't  get  out  afore  it  stopped,  sir."  "Did  anyone  ask 
you  for  your  ticket? — Tliey  did;"  emphatically,  as  though  he  knows 
now  where  he  is.  "Who? — lam  sure  I  don't  know  who  he  is;  never- 
saw  the  man  before  in  uiy  life."  "Well,  well,  did  he  do  anything?— No, 
8ir;  he  didn't  do  nothing  as  I  know  of;"  evidently  pu/./led,  as  if  be  had 
forgotten  some  important  event  upon  which  the  whole  case  turns. 


46  AMERICAN   ADVOCACi^ 

and  the  mind  of  the  jury  is  prevented  from  following 
the  course  of  the  narrative.  If  the  question  be  of 
importance  the  judge's  notes  must  be  altered,  and 
probably  will  be  confused. 

Besides  this,  the  breach  of  this  rule  tends  to  multi- 
ply itself.  The  question  having  been  interposed  at 
the  wrong  time,  the  judge  asks:  "When  was  that 
said?"  The  witness  becomes  confused,  tries  to  recol- 
lect, and  very  likely  puts  it  in  the  wi'ong  place  after 
all,  is  reminded  that  that  cannot  be,  is  ordered  to 
recollect  himself  and  be  careful^  and  so  on,  to  the  con- 
fusion of  everybody  except  the  opposing  counsel,  into 
whose  hands  the  inexperienced  examiner  is  playing. 
It  shows  the  necessity  of  every  event  being  placed  in 
its  natural  order,  and  of  every  material  circumstance 
and  conversation  accompanying  that  event  being 
given  in  connection  with  it,  so  that  everj'thing  is 
exhausted  as  the  story  proceeds.  If  this  be  not  done 
the  client  had  better  have  been  without  the  lawyer's 
services.  Let^  therefore.,  the  events  be  told  in  the  order  in 
which  they  occurred.,  with  the  accompanying  converm- 
tionH^  if  important  and  ctdmissible.,  and  their  minor 
incident!^  if  material. 

§  40.  Cross-Examining  One's  Own  Witness. — Another 
rule  to  observe  is  this:  An  advocate  should  never 
cro-ss-examine  his  own  witness.  This,  again,  seems 
remarkabl}^  obvious.  But  it  requires  an  effort  to 
obey  it  nevertheless.^     It  is  no  part  of  an  advocate's 


1  Before  Mr.  Justice  Hawkins,  an  English  jurist,  a  young  lawyer  was 
conducting  a  case,  wliicli  seemed  pretty  clear  upon  tlie  bare  statement 
of  the  prosecuting  witness.  But  the  latter  was  asked :  "Are  you  sure  of 
so  and  so?"*  "Yes,''  said  the  witness.  "Quite?"*  inquired  the  counsel. 
*-Qnite,'"  said  the  witness.  "You  have  no  doubt?""  persisted  the  counsel. 
*'Well,"  answered  the  witness,  "I  haven"t  much  doubt,  because  I  asked 
my  wife." 


EXAMINATION  IN   CHIEF.  47 

duty  to  shake  his  witness'  testimony  to  pieces  if  he 
believes  it  to  have  been  honestlj^  given.  Nay,  more. 
A  cross-examination  of  one's  own  witness  may  most 
unjustly  bring  about  a  disastrous  result.  A  witness 
may  get  confused,  and,  although,  at  first  might  feel 
absolutely  positive,  and  be  justly  positive,  yet  by 
perpetually  harassing  him,  he  may  begin  to  doubt 
whether  he  is  positive  or  not,  and  leave  an  impres- 
sion that  he  is  doubtful.  Such  questions  as:  "Are 
you  quite  sure,  now?  Are  you  certain?"  are  cross- 
examination,  and  do  not  fall  properly  within  the 
scope  of  examination-in-chief.  "Are  you  quite  sure 
you  have  the  money  in  your  hand,"  would  be  certain 
to  raise  a  doubt  in  the  mind  as  if  a  conjurer  had 
asked  the  question. 

§  41.  Cautioning  Witnesses  About  Rules  of  Evidence. 
—Another  fault  of  too  frequent  occurrence  is  the 
repetition  of  the  phrases:  "You  must  not  tell  us 
what  was  said,  but  what  was  done."  "Did  he  say 
anything  to  you?  Don't  tell  us  what  it  was."  The 
jury,  who  know  very  little  of  the  rules  of  evidence, 
must  sometimes  think  from  the  tone  as  well  as  the 
language  that  the  counsel  is  afraid  of  something  being 
told  that  would  be  adverse  to  his  case,  and  must 
wonder  at  an  advocate  who  asks  if  somebody  said 
something,  but  anxiousW  cautions  the  witness  not  to 
tell  what  it  was.  It  may  be  said  the  caution  was 
necessary;  so  it  might  be,  but  need  not  be  made  the 
prominent  feature  in  the  examination.  There  need 
not  be  a  fuss  about  it,  as  though  the  attorney  wanted 


Mr.  Justice  Hawking:  "You  asked  your  wife  in  order  to  be  sure  in 
jour  own  inindy"  '"Quite  so,  my  lord."  "Then,  you  bud  some  doubt 
before^*    "Well,  I  uiay  have  had  a  little,  my  lord." 

This  ended  the  case,  because  the  whole  (lucstion  turned  upon  the 
absolute  certainty  of  this  witness'  mind. 


48  AMERICAN  ADVOCACY. 

to  impress  the  world  with  his  vast  knowledge  of  the 
rules  of  evidence.  In  ninety-nine  cases  out  of  a  hun- 
dred, it  is  obvious  that  something  was  said;  the  fact 
will  not  be  disputed,  and  a  leading  question  will  pass 
the  witness  over  the  difiBcult}^,  and  not  confuse  his 
mind  by  sending  it  upon  an  inquiry  as  to  why  he 
must  not  give  the  conversation. 

§  42.  Leading  a  Witness. —  Leading  a  witness  in 
material  matters  is  a  blunder  which  is  not  likely  to 
be  permitted  b3^  the  examiner's  opponent;  but  if  he 
do  allow  it,  it  is  generally  to  the  examiner'' s  disad- 
vantage. Evidence  that  is  given  in  answer  to  leading 
questions  is  of  the  weakest  character.  The  mere 
answers  of  a  witness  are  nothing;  it  is  the  effect  they 
have  that  makes  them  valuable  or  otherwise,  and  a 
jury  always  distrusts  evidence  which  comes  rather 
from  the  mouth  of  the  counsel  than  that  of  the  wit- 
ness. As  a  matter  of  policy,  therefore,  apart  from 
the  violation  of  the  rules  of  advocacy  or  of  the  prac- 
tice of  the  courts,  leading  questions  upon  material 
matters  should  be  carefully  avoided. 

But  although  it  is  by  far  the  best  to  let  a  witness 
tell  his  story  in  his  own  way  as  much  as  possible,  it 
is  absolutely  necessary  to  prevent  him  from  rambling 
into  irrelevant  matter.  Most  uneducated  witnesses 
begin  a  story  with  some  utterly  irrelevant  observa- 
tion, such  as,  if  they  are  going  to  tell  what  took  place 
at  a  fire,  they  will  say,  "I  was  just  fastening  up  my 
back  door  when  I  heard  a  shout."  Witness  should 
be  led  as  quickly  as  possible  back  to  the  fire,  and  the 
evidence  will  come  with  little  trouble. 

§  43.  Unnecessary  Rapidity  and  Repetition. — There 
is  nothing  more  common  with  beginners  than  going 
too  fast.  They  are  f  requentl}^  told  by  the  judge  that 
they  forget  he  has  to  take  down  the  answers;  and 
the   importance  of  an   advocate's   evidence  looking 


EXAMINATION  IN   CHIEF.  49 

well  on  the  judge's  notes  cannot  be  exag-gerated  when 
he  is  supporting  or  showing  cause  against  a  rule  for  a 
new  trial.  When  the  evidence  is  coming  well,  there 
is  no  doubt  a  great  temptation  to  let  it  run  too  fast, 
but  the  examiner  must  take  care  it  does  its  proper 
work,  otherwise  it  will  be  like  a  rush  of  water  which 
shoots  over  the  mill-wheel  instead  of  turning  it. 

Unless  there  be  a  doubt  as  to  what  an  answer  was 
the  examiner  must  not  require  it  to  be  given  twice. 
'"''Let  well    alone.-''     There    is   also    danger  of  a  wit- 
ness varying  his  answer  unconsciously  if  he  is  asked 
again  and  again. 

§  44.  Verbose  Questions  to  be  Avoided. — Wlienever 
an  advocate's  question  is  too  long  the   answer  will 
be  worthless.     "'Will  j^ou  be  kind  enough  to  tell  us 
what  took  place  between  the  parties  with  reference 
to  the  agreement  that  was  then  entered  into  between 
them?"  This  is  an  instance  of  verbosity,  which  shows 
that  in  putting  questions  long  draivn  xenteneex  should  be 
avoided.     The  more  neatly  a  question  is  put  the  bet- 
ter, as  it  has  to  be  understood  not  only  by  the  wit- 
ness but  b}'  the  .^ur3^     All  that  was  necessarj^  to  be 
asked  might  have  put  in  two  questions:     ''Was  an 
agreement  entered  into  between  the  parties  and  the 
plaintiff?"     "What  was  it?"     To  fi*ame  a  question 
well  is  a  most  important  matter;  and  this  can  only 
be  done    by  careful   study.     Practice  alone  is   not 
enough,  and,  indeed,  will  do  very  little  toward  effect- 
ing this  object;  it  is  more  likely  to  confirm   tend- 
encies to  verbosit}'  than  to  diminish   them.     I  am 
speaking  now  of  the  length  of  questions,  and  not  of  * 
the  mode  of  putting  them.     It  is  a  ver}-  little  fault  to 
.  be  slow  in  this  particular,  provided  they  are  put  well 
and  tersely- . 

4 


CHAPTER  V. 


CROSS-EXAMINATION. 


§  46. 


46. 


47. 


48. 


Knowledge   of  Human  Na- 

§ 49 

ture. 

Dangers  of  Cross-Esamin- 

50 

ation. 

Good  Temper  of  the  Cross- 

Examiner. 

51 

Prejudice  and  Other  Hostile 

Motives  of  Witness  to  be 

52 

Emphasized  on  Cross-Ex- 

amination. 

53 

Manner,  Style  and  Tone  of 
Voice. 

Asking  Questions  Liable  to- 
Call  Forth  Adverse  Re- 
plies. 

CroPS-Exan)ination  of  Eva- 
sive and  Hostile  Witnesses. 

Some  Miscellaneous  Observ- 
ations. 

In  Conclusion. 


§  45.  Knowledge  of  Human  Nature. — Next  to  exam- 
ination-in-chief, nothing-  is  more  important  or  difiB- 
cult  in  advocacy  than  cross-examination.^      Cross-ex- 


1  "Tlie  system  is  as  old  as  the  history  of  nations.  Indeed,  in  this 
day,  the  account  given  by  Plato  of  Socrates"  cross-examination  of  his^ 
accuser,  Miletus,  wiiile  defending  himself  against  the  capital  charge  of 
corrupting  the  youth  of  Athens,  may  be  quoted  as  a  masterpiece  in 
the  art  of  cross-questioning. 

Cross-examination  is  generally  considered  to  be  the  most  difficult 
branch  of  the  multifarious  duties  of  the  advocate.  Success  in  the  art, 
as  some  one  has  said,  comes  more  often  to  the  happy  possessor  of  a 
genius  for  it.  Great  lawyers  have  often  failed  lamentably  in  it,  while 
marvelous  success  has  crowned  the  efforts  of  those  who  might  other- 
wise have  been  regarded  as  of  a  mediocre  grade  in  the  profession.  Yet 
personal  experience  and  the  emulation  of  others  trained  in  the  art  are 
the  surest  means  of  obtaining  proficiency  in  this  all-important  prere- 
quisite of  a  competent  trial  lawyer.  It  requires  the  greatest  ingenuity; 
a  habit  of  logical  thought;  clearness  of  perception  in  general;  infinite 
patience  and  self-control;  power  to  read  men's  minds  intuitively,  to- 


CROSS-EXAMINATION.  51 

amination  ma}^  almost  be  regarded  as  a  mental  duel 
between  advocate  and  witness.  The  first  requisite, 
therefore,  on  the  pai't  of  the  attacking  pai-ty  (namely, 
the  advocate)  is  a  knowledge  of  human  character. 
This  is  the  first  requisite,  and  it  is  an  indispensable 
one.  Since  almost  everybody  conceives  himself  to 
be  a  master  of  this  science,  and  since,  if  he  be  not,  it 
is  impossible  by  any  means  at  our  disposal  tp  add  to 
his  knowledge  in  that  respect,  we  shall  proceed  on 
the  assumption  that  the  reader  will  appreciate  many 
observations  which  would  not  be  quite  intelligible 
were  he  ignorant  of  this  profoundest  of  all  learning. 

Assuming,  then,  that  the  cross-examiner  has  some 
knowledge  of  human  nature,  he  should  be  able  to 
divine,  while  the  witness  is  being  examined  in  chief, 
the  kind  of  man  he  will  have  to  deal  with.  He 
should  determine  whether  he  has  learned  his  story  by 
heart;  if  so,  it  is  probably  not  all  true,  especially  if 
it  be  a  long  and  intricate  one.  This,  however,  is  by 
no  means  an  unerring  test.  It-  may  be  true,  never- 
theless. Many  policemen  learn  their  evidence  and 
give  it  off  verbatim ;  yet  it  is  more  often  than  not 
substantially  true.  But  the  advocate  will  gather 
from  the  witness'  manner,  his  mode  of  answering, 
his  looks,  tone,  language,  gestures,  even  his  very 
glances,  whether  he  be  a  false  witness  or  one  who  is 
telling  a  story  partly  true  and  partly  false,  the  most 
difficult  of  all  witnesses  to  deal  with. 

§  46.  Dangers  of  Cross-Examination. — Next  to  ex- 
amination-in-chief nothing  is  more  important  or  dif- 
ficult  in   advocacy    than   cross-examination.     It    is 

judge  of  their  characters  by  their  faces,  to  appreciate  their  motives; 
ability  to  act  with  force  and  precision,  a  masterful  knowledge  of  the 
subject-matter  itself;  an  extreme  caution;  and,  above  all,  the  instinct  to 
discover  the  weak  point  \n  the  witness  under  examination."'  Wellman's 
Art  of  Cross-Examination,  p.  M. 


52  AMERICAN  ADVOCACY. 

infinitelj^  the  most  dangerous  branch,  inasmuch  as 
its  errors  are  most  always  irremediable.  ,  Cross-ex- 
amination has  been  likened  to  a  two-edged  sword,  but 
it  is  infinitely  more  dangerous  than  that.  It  is  more 
like  some  terrible  piece  of  machinery — a  threshing 
machine,  for  instance — into  which  an  unskillful  ad- 
vocate is  more  likely  to  throw  his  own  case  than  his 
opponent's. 

The  dangers  of  cross-examination,  it  ma}^  be  ob- 
served, are  so  subtle  that  they  lurk  around  the  ques- 
tions of  the  most  skillful.  These  are  like  the  viarsh 
exhakitions — invisible,  but  destructive.  A  mistake  in 
cross-examination  maj'  be  fatal  to  a  lawyer's  case. 
A  single  question  maj'  make  an  opening  for  a  flood  of 
evidence  which  maj^  overwhelm  him.  Suppose  a 
conversation  to  have  taken  place  which  is  not  admis- 
sible as  evidence-in-chief,  but  which,  if  admitted, 
may  have  the  eifect  of  prejudicing  the  jurj',  or  of  in- 
troducing matter  otherwise  irrelevant,  but  which^ 
nevertheless,  maj^  in  some  degree  influence  their 
minds,  it  would  be  the  height  of  folh'  to  put  a  ques- 
Jbion  which  would  admit  it  in  re-examination. 

Another  danger  for  the  cross-examiner  to  avoid  is 
'that  of  strengthening  his  op2)one/it''s  ease  hy  eUcltlng 

1  It  happened  in  a  certain  English  case  (which   was  tried  before  Mr. 

.  Justice  Denman)  that  the  plaintiff  had  either  kept  no  account  books  or 
had  lost  them.  He  depended  upon  his  memory  for  the  particulars  of 
various  sums  said  to  have  been  lent  and  for  the  dates,  wi^ich  were  noi 
only  at  wide  intervals,  but  also,  many  of  them,  long  ago.    In  examina- 

;tion-in-chief.  he  was  asked  if  he  had  an  account.  He  said  yes.  Made 
when?  Some  time  ago.  How  made?  From  memoranda  which  were 
not  in  court.  The  account,  therefore,  was  objected  to.  Now,  it  was  quite 
jpossible,  if  that  account  had  been  placed  before  the  jury,  it  might  have 
wrongly  influenced  their  minds,  and  it  was  right  to  shut  it  out.  The 
plaintiff  was  thrown,  therefore,  upon  the  resources  of  his  memory,  and 
with  regard  to  two  items,  only,  he  was  tolerably  clear  as  to  the  dates 
and  circumstances. 
In  cross-examination  he  was  asked,  "Have  you  any  account  or  memo- 


CROSS-EXAMINATION.  53 

answers  that  have  more  effect  Jipon  the  jury  when  they 
come  by  way  of  cross-exainination  than  In  chief.  A 
question  is  sometimes  omitted  fairl}^  enough,  and  for 
good  reasons,  by  the  counsel  examining  in  chief. 
If  the  cross-examining  counsel  be  inexperienced,  he 
will  probabl}'  rush  in  and  get  the  answer  for  his  op- 
ponent. The  greater  weight  attaching  to  it  need 
scarcely  be  pointed  out.  Again,  he  may  get  in.  a 
conversation  that  may  be  fatal  to  his  case.^  There 
is  still  another  danger  not  to  be  lightly  regarded, 
and  that  is  of  persisting  in  pressing  a  question  7q)on  a 
reluctant  witness.     When  you  find  a  witness  unwilling 


raadiim  showing  the  several  sums  you  claim?''  He  snid,  "Yes,  it  is 
here,"  again  producing  the  copy  of  his  account.  It  was  again  objected 
to.  Question:  "In  what  sums  was  it  advanced?"  Plaintiff  looked  at 
his  document  and  said,  two  sums  of  twenty-five  pounds  each,  and  {here  he 
teas  stopped^  as  he  icas  reading  from  his  memorandum').  Plaintiff's  coun- 
sel then  claimed  that  the  document  was  in  and  could  be  shown  to  the 
jury.  Mr.  .lustice  Denman  held  that  H  was  not  in  evidence,  and  that 
no  question  had  been  asked  respecting  its  contents.  It  will  be  seen 
from  this — and  one  illi.stration  is  perhaps  as  good  as  twenty — that  a 
single  question  in  cross-examination  might  have  made  that  evidence, 
which  by  no  possibility  could  have  been  so  made  by  the  other  side. 

1  Suppose  the  question  to  be  the  contents  of  a  lost  will.  A  legatee 
under  it  gives  the  following  evidence :  I  remeuibcr  the  fact  of  the  tes- 
tator making  his  will.  I  saw  him  writing  it  and  I  read  it  at  the  time. 
I  was  left  a  thousand  poiuads  by  it  and  my  two  brothers  were  left  sev- 
erally the  same  amount.  I  last  saw  the  will  two  months  ago.  Now.  It 
might  be  that  the  whole  case  depended  upon  tlie  accuracy  of  the  wit- 
ness' memory,  or  upon  that  coupled  with  his  credibility.  Plaintiff's 
counsel  is  desirous  of  showing  that  on  the  day  the  will  was  made  the 
witness  went  for  a  doctor  and  told  him,  at  that  time,  the  contents  of  the 
will.  If  this  statement  could  be  given,  and  it  were  identical  with  that 
made  in  the  witness-box  years  after,  it  is  clear  that  it  would  go  a  long 
way  to  establish  the  accuracy  of  the  witness'  memory  as  well  as  his 
credibility.  But  it  is  not  admissible  as  evidence-in-chlef.  A  question, 
however,  in  cross  exauiination  would  admit  every  word. 

Nor  does  the  danger  cease  when  this  witness  leaves  the  box.  The 
doctor,  a  witness  to  the  will,  may  be  called.  Ue  may  not  have  read  it, 
but  an  inadvertent  question  may  enable  him  to  say  what  Ihe  last  witness 
told  him  on  the  occasion  in  question. 


54  ami':rican  advocacy. 

to  ^ive  the  evidence  you  seek,  and  3"ou  have  drawn 
him  as  near  to  the  point  as  there  is  any  hope  of  his 
being  drawn  or  driven,  it  is  always  dangerous  to  at- 
tempt to  urge  him  further.  If  you  have  nearly  got 
an  affirmative,  and  you  press  hi-m  overmuch,  j'ou 
may  irritate  him  into  giving  you  a  direct  negative. 

The  dangers  thus  indicated  will  doubtless  suggest 
many  others  to  a  mind  anxious  to  master  the  rudi- 
ments of  advocacy.  They  can  onl}^  be  avoided  by 
careful  stud3\^ 

^  47.  Good  Temper  of  the  Cross-Examiner. — It  will 
be  clear  that,  to  cross-examine  with  anything  like 
success,  the  most  thorough  good  temper  should 
be  preserved.     An  ill-tempered  advocate  would   be 


1  When  to  Keep  Silent  on  Cross -Examination. — A  long  time  ago,  in  the 
East  End  of  London,  lived  a  manufacturer  of  the  name  of  Waring. 
Among  the  many  hands  he  employed  was  a  girl  of  the  name  of  Harriet 
Smith.  Mr.  Waring  fell  in  love  with  her.  Had  Harriet  known  he  was 
married,  in  all  probability  she  would  have  rejected  his  respectable  at- 
tentions. He  induced  her  to  marry  him,  but  it  was  to  be  kept  secret; 
her  father  was  not  to  know  of  it  until  such  time  as  suited  Mr.  Waring's 
circumstances.  In  the  course  of  time  there  were  two  children;  and 
then  unfortunately  came  a  crisis  in  Mr.  Waring's  affairs.  He  was  bank- 
rupt. The  factory  and  warehouse  were  empty,  and  Harriet  was  de- 
prived of  her  weekly  allowance. 

One  day  when  Waring  was  in  his  warehouse  wondering,  probably, 
what  would  be  his  next  step,  old  Mr.  Smitii,  the  father  of  Harriet,  called 
to  know  what  had  become  of  his  daughter.  '"That,''  said  Mr.  Waring, 
"is  exactly  what  I  should  like  to  know."'  She  had  left  him,  it  seemed, 
for  over  a  year,  and,  as  he  understood,  was  last  seen  in  Paris. 

She  had  been  gone  nearly  a  year,  and  in  a  few  days  Mr.  Waring  was 
to  surrender  the  premises  to  his  landlord.  There  never  was  a  man  who 
took  things  more  easily  than  Mr.  Waring;  leaving  his  premises  did  not 
disturb  him  in  the  least,  except  that  he  had  a  couple  of  rather  large 
parcels  which  he  wanted  to  get  away  without  anybody  seeing  him.  It 
happened  that  a  youth  of  the  name  of  Davis,  who  had  formerly  been  in 
his  employ,  suddenly  met  his  old  master,  who  greeted  him  with  his  usual 
cordiality  and  asked  him  if  he  had  an  hour  to  spare,  and,  if  so,  would 
he  oblige  him  by  helping  him  to  a  cab  with  a  couple  of  parcels  which 
belonged  to  a  commercial  traveler  and  contained  valuable  samples? 
James  consented  willingly,  and  lighting  each  a  cigar  which  Mr.  Waring 


CROSS-EXAMINATION.  55 

something  like  ;i  gibbino*  horse,  he  would  do  every- 
thing but  go  along  sraoothl}'.  A  culm,  imperturbable 
tempe^'  is  the  very  triumph  of  self-command,  and  one 
of  the  most  essential  qualities  of  a  good  advocate. 
It  is  useless  to  make  excuses  for  bad  temper,  as  sen- 
sitiveness, indigestion,  disappointment,  or  what  not. 
Good  temper  is  the  demand  of  an  advocate's  client, 
and  in  mere  justice  to  him  a  lawyer  is  bound  to  pre- 
serve it.  Even  if  he  should  be  a  constitutionally 
irritable   man,  he  must  absolutely  conquer   his  ir- 


produced,  they  walked  along,  chatting  about  old  times  and  old  friends. 
"When  they  got  to  the  warehouse  there  were  the  two  parcels  tied  up  in 
American  cloth. 

"Here  they  are,"  said  Mr.  Waring,  striking  a  light.  '-You  take  one, 
and  I'll  take  the  other;  they're  pretty  heavy,  and  you  must  be  careful 
how  you  handle  them,  or  some  of  the  things  might  break.'' 

When  they  got  to  the  curb  of  the  pavement,  Mr.  Waring  said,  "Stop 
here,  and  I'll  fetcli  a  four-wheeler." 

While  .James  was  waiting,  a  strange  curiosity  to  look  into  the  parcels 
came  over  him;  eo  strange  that  it  was  irresistible,  and  accordingly  he 
undid  the  end  of  one  of  them.  Imagine  the  youth's  horror  when  he  was 
confronted  with  a  human  head  that  had  been  chopped  off  at  the 
shoulders!  "My  hair  stood  on  end,"  said  the  witness,  "and  my  hat  fell 
off."  But  his  presence  of  mind  never  forsook  him.  He  covered  tlie 
ghastly  "relic  of  mortality"  up  and  stood  like  a  statue  waiting  Mr- 
Waring's  return  with  his  cab. 

"Jump  in,  .lames,''  said  he,  after  they  liad  put  the  "samples"  on  the 
top  of  the  cab.  But  .James  A'as  not  in  the  humor  to  get  into  the  cab. 
He  preferred  running  behind.  So  he  ran  behind  all  along  Whitcchapel 
road,  over  London  bridge.  By  and  by  the  cab  drew  up  in  a  back  street 
in  front  of  an  empty  house.  James  came  up  panting  just  as  his  old 
master  had  taken  his  tirst  packet  of  samples  into  the  house.  He  had 
managed  somehow  or  other  to  get  a  policeman  to  listen  to  him,  and  Mr. 
Waring  was  arrested  and  the  ghastly  contents  of  the  bundles  discovered. 
At  the  police  station  the  divisional  surgeon  pronounced  the  remains  to 
be  those  of  a  young  woman  who  had  been  dead  for  a  considerable  time 
and  buried  in  chloride  of  lime. 

Of  course  this  was  no  proof  of  murder,  and  the  charge  of  murder 
against  Waring  was  not  made  ttntil  a  considerable  time  after— not  until 
the  old  father  had  declared  time  after  time  that  the  remains  were  those 
of  his  daughter  Harriet. 

Notwithstanding  It  was  clear  that  no  charge  of  tnurder  could  be 


56  AMERICAN  ADVOCACY. 

ritability  for  the  time  being.  He  must  never  even 
appear  to  lose  his  temper,  for  no  one  ever  believes 
that  a  man  in  the  heat  of  temper  means  what  he 
says.  "Allowance'' is  always  made  for  this  infirm- 
ity. But  when  the  jury  have  reason  to  make  this 
allowance  the  chances  are  that  his  case  is  gone — in 
all  probabilit}"  his  client  also. 

^  48.  Prejudice,  and  Other  Hostile  Motives  on 
the  Part  of  the  Witness  to  be  Emphasized  on  Cross- 
Examination. — But,  besides  determining  whether  he 


proved  without  identification,  the  treasury  boldly  made  a  dash  for  the 
capital  charge  in  the  hope  that  something  might  turn  up.  And  now, 
driven  to  their  wifs  end,  old  Mr.  Smith  was  examined  by  one  of  the 
best  advocates  of  the  day,  and  this  is  what  he  made  of  him: 

"You  have  seen  the  remains?" 

"Yes."' 

"Whose  do  yon  believe  them  to  be?*" 

"My  daughter's,  to  the  best  of  my  belief.''' 

"Wliy  do  you  believe  them  to  be  your  daughter's?"" 

"By  the  height,  the  color  of  the  hair,  and  the  smallness  of  the  foot  and 
leg." 

That  was  all ;  and  it  was  nothing. 

But  there  must  needs  be  cross-examination  if  you  are  to  satisfy  your 
client.     So  the  defendant"s  advocate  asks: 

"Is  there  anything  else  upon  which  your  belief  is  founded?"" 

"No,"  hesitatingly  answers  the  old  man,  turning  his  hat  about  as  if 
there  was  some  mystery  in  it. 

There  is  breathless  anxiety  in  the  crowded  court,  for  the  witness 
seemed  to  be  revolving  something  in  his  mind  that  he  did  not  like  to 
bring  out. 

"Yes,""  he  said,  after  a  dead  silence  of  two  or  three  minutes.  "My 
daughter  had  a  scar  on  her  leg.'''' 

There  was  sensation  enough  for  the  drop  scene.  More  cross-exami- 
nation was  necessary  now  to  get  rid  of  the  business  of  the  scar,  and 
some  re-examination,  too.  The  mark,  it  appeared,  w«s  caused  by 
Harriet's  having  fallen  into  the  fireplace  when  she  was  a  girl. 

"Did  you  see  the  mark  on  the  remains?"'  asked  the  prisoner"s  counsel. 

"No;  I  did  not  examine  for  it.     I  hadn"t  seen  it  for  ten  years."' 

This  evidence  proved  to  be  so  very  material  that  when  it  was  found  on 
the  leg  exactly  as  the  old  man  and  a  sister  had  described  it,  the  doctors 
cut  it  out  and  preserved  it  for  production  at  the  trial.  After  the  dis- 
covery, of  course,  the  result  of  the  trial  was  a  foregone  conclusion. 


CROSS-EXAMINATION.  57 

be  false  or  true,  or  an  artful  twister  of  facts,  the 
cross-examiner  will  also  ascertain  whether  he  has  a 
strong  bias  in  one  direction,  or  a  prejudice  in  the 
other.  If  he  have  a  strong  leaning-  to  the  side  of  his 
opponent,  he  will  have  the  less  difficult}^  in  disposing 
of  him,  because  it  will  be  easy  to  lead  him  on  until 
his  bias  becomes  so  manifest  and  overpowering  that 
the  jury  will  discount  his  evidence,  and  to  such  an 
extent  that,  if  the  case  depend  upon  him,  the}''  will 
throw  it  over  altogether.  A  strong  interest  weakens 
the  side  on  which  it  lies.  It  will,  therefore,  be  clear 
that  in  cross-examining  a  witness  of  this  kind  it  will 
be  proper  to  elicit  this  at  the  earliest  opportunity. 
If  it  comes  last  it  will  be  far  weaker,  because  it  will 
not  altogether  undo  the  eifect  which  his  evidence 
may  have  made  upon  the  minds  of  the  jury.  The 
int€re><t  a  witness  has  in  a  case  should^  therefore^  be 
shoam  early  in  the  eross-exafiiination.,  if  it  has  not  been 
made  manifest  before.  Of  course,  the  advocate's  oppo- 
nent will  not  leave  him  this  card  to  play  if  he  can  avoid 
it;  but  he  cannot  help  his  overtrumping  him  by  plac- 
ing it  more  prominently  before  the  jury  than  he 
would  ever  permit  himself  to  do;  and  this  it  will  be 
the  advocate's  duty  to  accomplish. 

But  it  may  be  the  witness  has  no  interest.  He 
may,  nevertheless,  be  a  partisan ;  and  partisanship  is 
often  stronger  than  self-interest,  although  the  latter 
has  somewhat  erroneously  been  described  as  the 
most  powerful  principle  influencing  human  actions. 
The  advocate  may  take  it  for  gi-anted  that  if  his  oppo- 
nent should  sometimes  anticipate  the  cross-examiner 
in  showinghis  witness' interest  in  acause,  he  will  never 
be  eager  to  acknowledge  him  a  partisan.  The  cross- 
examiner  will  therefore  generally  be  left  master  of  the 
field  in  this  respect,  and  at  libert}'  to  choose  his  time, 
place,  and  mode  of  attack;  and  so  that  it  be  early,  he 


58  AMERICAN  ADVOCACY. 

may  do  it  as  he  likes.  In  a  great  number  of  cases 
there  is  something  of  partisanship,  and  it  ma}^  be 
taken  as  a  rule  that  an  absolutely  unbiased  witness 
is  rare.  The  strong  partisan,  however,  is  only  pro- 
duced by  public  matters,  religious  disputes,  bound- 
ary questions,  quasi-political  inquiries,  medical  cases, 
rating  matters,  running-down  causes,  and  other  in- 
vestigations, where  the  witnesses  seem  naturally  to 
take  sides. 

But  suppose  the  witness  has  some  other  motive  in 
giving  his  evidence.  The  cross-examiner  will  en- 
deavor to  ascertain  what  it  is.  If  he  watch  care- 
fully he  will  find  a  difference  in  tone  and  manner 
when  he  is  speaking  more  directly  from  the  particu- 
lar motive.  Suppose  it's  revenge?  Any  point  which 
seems  more  particularly  to  damage  his  adversarj'' 
will  be  laid  stress  upon.  An}"  answer  that  he  makes 
which  he  thinks  will  damage  him  will  be  uttered  in  a 
more  ready  tone  and  with  evident  satisfaction.  It 
will  manifest  itself  in  his  voice,  in  his  look,  and  his 
whole  demeanor.  That^  therefore,  must  be  stamped 
upon  the  mind  of  the  jury  by  the  advocate's  cross- 
examination.  But  there  are  subtle  motives,  by  no 
means  apparent  to  every  observer,  which  will,  never- 
theless, be  discovered  if  the  cross-examiner  set  him- 
self to  the  task  of  finding  them  out.  And  whatever 
the  motive  be,  there  is  some  ground-work  for  cross- 
examination,  except  in  case  of  the  witness  whose 
motive  is  simply  to  speak  the  truth  as  he  knows  it. 
If  this  man's  evidence  does  not  seriously  conflict 
with  the  advocate's  case  he  should  let  him  alone.   • 

§  49.  Manner,  Style  and  Tone  of  Voice. — With  re- 
spect to  style,  as  before  remarked,  every  man  has 
his  own,  or  should  have.  When  he  borrows  he  maj" 
show  good  powers  of  imitation,  but  he  lacks  that 
which  is  necessary  to  carry  a  man  to  the  highest 


CROSS-EXAMINATION.  59 

eminence  in  any  art,  namel}^,  originality.  "With  re- 
gard to  manner,  a  man  should  imitate  the  best.  The 
most  eminent  are  as  a  rule  the  most  unaffected,  and 
the  quiet,  moderate  manner  is  generall}^  the  most 
effective.  It  is  not  intended  to  imply  that  bluster 
and  a  high  tone  will  not  sometimes  unnerve  a  timid 
witness,  but  this  is  not  cross-examination  or  true 
advocacy.  It  is  not  art,  but  bull3nng — not  intel- 
lectual power,  but  mere  physical  momentum.  Nor 
is  it  intended  to  be  conveyed  that  an  advocate  should 
at  all  times  treat  a  witness  with  the  gentleness  of  a 
dove.  Severity  of  tone  and  manner,  compatible  with 
self-respect,  is  frequentl}"  necessar}-  to  keep  a  wit- 
ness in  check,  and  to  draw  or  drive  the  truth  out  of 
him  if  he  have  any;  but  the  severity  will  lose  none  of 
its  force,  nay,  it  will  receive  an  increase  of  it,  by 
being  furbished  with  the  polish  of  courtesy  instead 
of  roughened  with  the  language  of  uncompromising 
rudeness.^  The  tone  in  which  questions  are  asked 
will  not  only  have  a  great  effect  with  the  jury,  but 
with  the  witness  himself.  A  cross-examining  coun- 
sel should  always  seem  in  earnest;  if  he  have  the  ap- 
pearance of  one  who  is  simply  endeavoring  to  amuse 
an  audience,  the  jury  will  quickl}'  come  to  the  con- 


'  A  great  authority  on  Rhetoric,  speaking  on  the  subject  of  cross-ex- 
amination, says:  "In  oral  examination  of  witnesses  a  skillful  cross- 
examiner  will  often  elicit  from  a  reluctant  witness  most  important 
truths  wliich  the  witness  is  desirous  of  concealinar  or  disguising.  Theie 
is  another  kind  of  skill,  which  consists  in  so  alarming,  misleading,  or 
bewildering  an /jo«f'«(  witness  as  to  throw  discredit  on  his  testimony  or 
prevent  the  effect  of  it.  This  kind  of  art  may  be  characterized  as  the 
most,  or  one  of  the  most,  base  and  depraved  of  all  possible  euiploy- 
ments  of  intellectual  power.  Generally  speaking,  I  believe  that  a  (luiet, 
gentle  and  straightforward— though  full  and  careful — examination,  will 
be  the  most  adapted  to  elicit  truth,  and  that  the  maneuvers  and  the 
browbeating  wlilch  are  the  most  adapted  to  confuse  an  iionest  witness 
are  just  what  the  dishonest  one  is  the  best  prepared  for."  Whateley's 
Elements  of  Rhetoric,  p.  165. 


60  AMERICAN  ADVOCACY. 

elusion  that  he  does  not  believe  in  his  own  case. 
Manner  plays  a  great  part  in  advocacy.  Every  one 
knows  that  a  question  in  one  tone  will  induce  an  an- 
swer, where  in  another  it  will  not:  that  the  emphasis 
upon  a  particular  word  may  produce  a  totally  dif- 
ferent version  from  that  which  it  would  cause  if  laid 
upon  another.  An  advocate  should  never  appear  to  be 
hostile  in  cross-examination  if  he  can  avoid  it;  hostil- 
ity is  infectious,  it  may  get  into  the  jury  box,  and 
thence  to  the  judge. 

§  50.  Asking  Questions  Liable  to  Call  Forth  Adverse 
Replies.— It  is  a  good  rule  in  cross-examining  a  wit- 
ness iiever  to  a-ik  a  question  the  answer  to  which  may  be 
adverse  to  the  cross-examiner'' s  case.  Nothing  but  ab- 
solute necessity  should  induce  a  departure  from  this 
rule.  There  are  so  man}^  ways  of  framing  a  question 
or  a  series  of  questions,  that  it  would  disclose  a  pov- 
erty of  ingenuity  indeed  if  the  cross-examiner  asked 
one  that  might  involve  the  fate  of  his  client.  Many- 
lawyers  constantly  put  questions  and  elicit  answers 
dangerous  and  often  fatal  to  their  case;  whereas, 
with  the  exercise  of  a  little  ingenuity,  they  might,  by 
small  portions  at  a  time,  as  if  they  were  enticing  a  shy 
bird  with  crumbs,  obtain  little  by  little  that  which 
they  require  as  a  whole.  Not  only  when  doubtful  of 
the  answer  should  this  course  be  adopted,  but  even 
when  it  is  necessary  to  his  case  that  a  particular  ansioer 
should  he  obtained.  And  it  might  be  suggested,  as  a 
good  and  safe  rule,  that  if  he  be  desirous  of  getting  an 
answer  to  a  particular  question, /^  6"  should  not  put  it. 
The  probability  is  that  the  witness  will  know  his  dif- 
ficulty and  avoid  giving  him  exactly  what  he  wishes. 
Besides  avoiding  the  danger  of  elicitingevidence  which 
may  be  adverse  to  the  advocate's  client,  it  should  be 
remembered  that  by  cross-examination  a  color  may 
be  given  to  that  elicited  in  chief,  which  may  not  only 


CROSS-EXAMINATION.  61 

emphasize  it,  but  give  it  the  ajypearance  of  evidence 
^vhich  the  cross-examine)'  himself  has  adduced.  Coun- 
sel should  carefully  avoid  making  his  adversary's 
witness  his  own  by  cross-examination,  as  he  cer- 
tainl}^  will  if  he  obtains  answers  favorable  to  the 
other  side. 

§  51.  Cross-Examination  of  Evasive  and  Hostile  Wit- 
nesses. —  If  a  witness  is  not  altogether  straight- 
forward^ he  will  be  on  the  alert,  and  unless  the 
cross-examiner  circumvent  him  he  will  evade  his 
question.  It  is  in  such  a  situation  as  this  that  the 
skill  of  the  cross-examiner  is  shown.  One  advocate 
will  sit  down  baffled,  another  will  obtain  all  that  he 
requires.  A  series  of  questions,  not  one  of  them 
indicative  of,  but  each  leading  up  to  the  point,  will 
accomplish  the  work.  If  the  fact  be  there  the  cross- 
examiner  can  draw  it  out,  or  if  he  do  not  so  far  suc- 
ceed, he  can  put  the  witness  in  such  a  position  that 
from  his  very  silence  the  inference  will  be  obvious. 
In  cross-examining  a  hostile  witness  upon  a  point 
that  is  material  it  is  sometimes  advisable  to  put  ten 
unimportant  questions  to  one  that  is  important, 
and  when  the  cross-examiner  has  put  the  imjrortant 
one  lie  should  put  it  as  though  it  were  the  most 
unimportant  of  all.  And  then,  when  the  cross-ex- 
aminer has  once  got  the  answer  he  wants,  he  should 
Jeave  it;  he  should  divert  the  mind  of  the  witness 
by  some  other  question  of  no  relevancy  at  all.  There 
is  no  occasion  to  emphasize  an  answer  while  the  wit- 
ness is  in  the  box  if  the  question  be  properly  put. 
The  time  for  that  will  come  when  the  advocate  sums 
Ta\)  or  replies.     If  the  witness  sees  from  tlie  advo 


•  For  different  classes  of  obstructive,  hostile  and  evasive  witnesses, 
and  how.  to  deal  with  them,  see  chapter  entitled  "Classes  of  Wit- 
nesses." 


62  AMERICAN  ADVOCACY. 

cate's  manner  that  he  has  said  something  which  is 
detrimental  to  the  party  for  whom  he  has  given  his 
evidence — unless  he  be  an  honest  witness — he  will 
endeavor  to  qualify  it,  and  perhaps  succeed  in  neu- 
tralizing its  effect.  If  the  advocate  leave  it  alone,  it 
may  be  that  his  opponent  maj^  not  perceive  its  full 
effect  until  it  has  passed  into  the  region  of  comment. 
Nothing  is  more  unskillful  than  repeating  a  question 
when  a  favorable  answer  has  been  obtained. 

§  52.  Some  Miscellaneous  Observations. — It  is  a  good 
rule  yiever  to  put  a  question  in  Gross-examiruition  ivith- 
out  being  able  to  give  a  reason  for  it.  Many  j^'oung 
advocates  rise  to  cross-examine  without  the  least 
idea  of  what  they  are  going  to  ask,  and  take  the  wit- 
ness back  through  the  evidence-in-chief,  as  though  it 
had  not  made  effect  enough  upon  the  jury.  Nothing 
can  be  more  unskillful  than  this.  "Cross-examina- 
tion," said  a  learned  judge  to  a  junior,  "does  not  con- 
sist in  repeating  in  a  louder  tone  the  examination-in- 
chief."  Another  important  rule  to  be  remembered 
is  that  it  is  not  ivise  to  cross-examine  for  explanations^ 
unless  the  explanation  is  necessary  for  your  case. 
No  doubt  there  is  some  degree  of  fascination  in  solv- 
ing a  mystery,  but  when  the  advocate  finds  that  the 
explanation  of  it  is  immensely  to  the  advocate's  dis- 
advantage, he  will  not  quite  so  much  enjo}"  the  quiet 
smile  of  his  opponent  when  the  latter  finds  that  he 
has  cleared  up  something  which  he  could  not,  and 
which  he  has  purposely  left  for  the  exercise  of  the 
cross-examiner's  ingenuity  and  fertility  of  inquiry.^ 


1  "Before  dismissing  a  witness,  however,  the  possibility  of  being  able 
to  elicit  some  new  facts  in  our  favor  should  be  taken  into  consideration. 
If  the  witness  is  apparently  truthful  and  candid,  this  can  readily  be 
done  by  asking  plain,  straightforward  questions.  If,  however,  there  is 
any  reason  to  doubt  the  willingness  of  the  witness  to  help  develop  the 
truth,  It  may  be  necessary  to  proceed  with  more  caution,  and  possibly 


CROSS-EXAMINATION.  63 

Cross-examining  for  small  discrepancies  in  conver- 
sations is  generally  useless;  always  so  merel,y  as  a 
test  of  veracit3\^  Veracity  must  be  tested  by  di- 
vergencies of^  statement  upon  material  points,  and 
with  reference  to  matters  respecting  which  the  wit- 
nesses could  hardly  be  mistaken.  Ditferences  upon 
other  points  merely  go  to  memory,  closeness  of  ob- 
servation, or  descriptive  power. 

§  53.  In  Conclusion.  —  That  the  modes  hinted 
at  in  this  chapter  are  useful  is  a  matter  not 
of  speculation,  but  of  experience.  Many  of  these 
hints  may  appear  to  be  commonplace  siiggestiolis; 
they  are  the  rudiments  of  advocacy,  nevertheless, 
and  rudimentary  knowledge  often  comes  to  us 
only  after  long  experience  or  through  the  kind- 
ness of  an  experienced  friend.  Sometimes  it  comes 
after  wearying  disappointments  and  heartfelt  re- 
bukes. These  suggestions  have  been  noted  with  the 
hope  of  saving  some  the  weary  and  watchful  labors 
that  so  many  have  undergone.  Nowhere  has  an  at- 
tempt been  made  to  throw  out  a  hint  for  the  purpose 
of  enabling  an  advocate  to  confound  or  entrap  the 
honest  and  truthful  witness,  around  whom  ever}"  pro- 
tection should  be  thrown;  but  our  endeavor  has  been 
to  suggest  modes  of  dealing  with  the  artful  and  the 


to  put  the  witness  in  a  position  wtiere  it  will  appear  to  the  jury  tliat  he 
could  tell  a  good  deal  if  be  wanted  to,  and  then  leave  him.  The  jury 
will  thus  draw  the  inference  that,  had  he  spoken,  it  would  have  been  in 
our  favor."    Wellman*8  Art  of  Cross-Exainlnation,  p.  26. 

1  In  a  case  before  Mr.  .Justice  Stephen,  the  learned  judge  said:  "I 
think  It  the  greatest  waste  of  time  to  ask  ([uestions  in  order  to  get  con- 
tradictions with  regard  to  conversations.  There  may  be  material  points 
upon  which  it  is  important  to  cross-examine.  If  any  two  persons  were 
to  give  an  account  of  the  conversation  which  the  two  learned  counsel 
have  been  liolding  for  tlie  last  hour  and  a  quarter,  there  would  be,  I 
suspect,  a  vast  difference  indeed  between  their  statements." 


64  AMERICAN  ADVOCACY. 

vicious,  in  order  that  deceit  may  be  baffled  and  im- 
posture exposed. 

Another  word.  When  the  advocate  has  studied  his 
hardest  to  learn  how  to  cross-examine,  the  next  les- 
son should  be  how  to  do  as  little  of  it  as  he  can;  he 
should  never  cross-examine  if  he  can  safely  avoid  it. 
and  when  he  does,  let  the  questions  be  few  and  with 
a  purpose.  The  best  cross-examiner  is  generally  the 
shortest. 


CHAPTER  VI. 


RE -EXAMINATION. 


54. 
55. 
56. 


57. 


58. 


General  Principles. 

Dangers  of  Re-examination. 

"Where  the  Cross-Exam ina- 
tion  is  Favorable  to  the  Re- 
examiner. 

Re-examination  Where  the 
Cross-Examination  is  Un- 
favorable to  the  Examiner. 

Seizing  Opportunities  Of- 
fered by  the  Cross-Examl- 
nation  to  Introduce  Matter 
Otherwise  Inadmissible. 


§  59.  Re-examination  in  Cases 
Where  Character  or  Cred- 
ibility of  Witness  has  been 
Attacked. 

60.  Pursuing  an  Equivocal  Re- 

ply of  One's  Own  Witness, 
Elicited  on  Cross-Exami- 
nation. 

61.  Repetition    of   Evidence  in 

Chief  on  Re-Examination. 


§  54.  General  Principles. — This  branch  of  advocacy 
will  not  require  very  elaborate  treatment.  Not  that 
it  is  by  any  means  an  unimportant  subject  or  a  small 
matter  in  the  conduct  of  a  case;  on  the  contrary,  it  is 
worthy  of  the  most  careful  study,  and  the  following 
hints  may  be  of  some  use,  while  they  show  the  dan- 
gers as  well  as  the  advantages  of  re-examination.  If 
it  were  not  necessary,  cross-examination  would  be 
useless.  To  restore  the  ravages  that  have  been  made 
by  that  destructive  engine  is  the  principal  duty  of 
this  portion  of  the  advocate's  work.  If  he  has 
watched  the  cross-examination  with  that  unceasing 
vigilance  which  he  ought  to  have  bestowed  upon  it, 
he  will  have  observed  and  noted  the  points  that  have 
been  made  against  him.  Some  of  his  evidence  has 
-disappeared  altogether;  other  portions  have  received 

5 


66  AMERIt^AN  ADVOCACY. 

such  a  shock  that  they  exist  in  a  very  rickety  and 
dilapidated  form;  some  other  parts  have  received  a 
coating  of  interpretation,  which  must  be  removed; 
other  fragments  lie  here  and  there  in  a  mass  of  con- 
fusion, from  which  they  must  be  extricated  if  he  de- 
sire to  re-establish  his  case.  He  should  begin  to 
repair  where  the  first  breach  was  made.  The  wit- 
ness may  have  given  an  answer  he  did  not  intend, 
and  very  much  of  the  subsequent  mischief  may  have 
flowed  from  that  unfortunate  mistake.  If,  therefore, 
the  examiner  set  that  right,  he  will  easily  pass  along 
and  repair  the  damages  which  have  resulted  from  it. 
He  should  proceed  in  his  work  of  repair  as  the  de- 
stroyer proceeded  in  his  work  of  destruction.  Ex- 
planations in  this  stage  of  the  case  often  make  the 
examiner's  evidence  the  stronger  for  the  confusion 
in  which  it  has  been  temporarily  involved. 

§  55.  Dangers  of  Re-Examination. — But,  unless  re- 
examination be  absolutely  necessary,  it  should  never 
be  used.  It  is  not  every  trifle  that  should  induce  an 
advocate  to  commence  afresh  with  his  witness.  If  a 
trivial  and  unimportant  point  has  been  made,  but  the 
leading  facts  of  the  case  are  left  undisturbed,  the 
matter  should  be  left  to  the  jury.  B}^  not  re-examin- 
ing when  not  obliged  to,  the  danger  of  cross-examin- 
ing one's  own  witness  will  be  avoided.  An  advocate 
is  not  required  to  explain  everything.  It  sometimes 
happens  that  a  witness,  from  natural  suspicion  of  the 
intentions  of  the  cross-examining  counsel,  will  not 
answer  intelligibly — will  hesitate  or  stumble.  It  is 
not,  however,  necessary  that  the  advocate  should -fl}^ 
to  pick  him  up  before  he  is  down.  If  his  evidence-in- 
chief  has  been  fairly  given,  the  jury  will  be  sure  to 
make  allowance  for  subsequent  maneuvers  to  upset 
him.  Whereas,  if  the  examiner  rush  to  the  rescue 
unnecessarily,  and  endeaver  to  obtain  explanations 


RK-EXAMINATION.  67 

not  vouchsafed  to  his  opponent,  the  witness  will  think 
he  is  anxious  for  his  answers,  and,  recovering  from 
his  nervousness,  fill  up  the  gaps  the  opposing  counsel 
has  left.  In  other  words,  the  advocate  will  complete 
the  cross-examination,  with  this  additional  advantage 
to  his  opponent — that  the  evidence  will  look  like  evi- 
dence-in-chief, and  not  like  that  extracted  by  a  hostile 
examiner. 

§  56.  Where  the  Cross-Examination  is  Favorable  to 
the  Re-Examiner. — If  an  answer  be  elicited  in  cross- 
examination  which  is  favorable  to  the  advocate's 
case,  it  is  highly  important  that  he  should  not  appear 
to  be  so  fascinated  with  it  as  to  re-examine  upon  that. 
Something  else  may  be  admissible  in  consequence, 
and  this  opportunity  should  be  watched  for  and 
seized.  If  he  re-examine  upon  the  very  fcict  obtained 
for  him,  this  result  may  follow:  that  his  opponent, 
who,  discreetly  enough,  declined  to  pursue  the  sub- 
ject further,  may  have  the  satisfaction  of  hearing  him 
get  an  explanation  which  may  neutralize  the  effect  of 
his  mistake.  ^''Let  well  alone.''''  A  favorable  answer 
to  the  advocate,  elicited  in  cross-examination,  is  not  a 
subject  to  re-examine  upon  of  itself,  but  to  be  made 
the  most  of  in  his  reply. 

§  57.  Be-Examination  Where  the  Cross-Examination 
is  Unfavorable  to  the  Examiner.  —  As  the  advocate 
watches  carefully  the  cross-examination  of  his  wit- 
ness, he  will  probably  be  made  aware  for  tlie  first 
time  of  many  weak  points  in  his  case.  If  there 
should  be  one  which  he  has  flattered  himself  has 
been  passed  cleverly  by  in  his  examination-in-chief, 
he  may  certainly  anticipate  a  well-directed  blow  in 
that  quarter  at  all  event^s.  It  is  in  the  remedying  of 
such  a  misadventure  that  the  art  of  re-examination 
consists;  and  it  is  only  by  an  intimate  kiwwledije  of  the 
facts  and  tlieir  relative  bearlnga  that  an  advocate  will 


68  ^  AMERICAN  ADVOCACY. 

be  enabled  to  set  his  witness  up  when  his  evidence 
has  been  thus  battered.  Sometimes  a  cross-examina- 
tion has  been  so  effective  that  the  evidence  of  a  par- 
ticular witness  has  been  hopelessly  demolished.  An 
experienced  advocate,  under  such  circumstances,  will 
resign  him  to  his  fate.  If  he  have  other  witnesses, 
upon  whom  he  can  rely,  his  task  will  be  with  them ; 
if  not,  the  case  must  fall  with  the  witness. 

§  58.  Seizing  Opportunities  Offered  by  the  Cross-Ex- 
amination  to  Introduce  Matter  Otherwise  Inadmissible. — 
Next  to  carefully  watching  for  any  points  that  may  be 
made  against  him,  a  no  less  important  duty  of  the  ad- 
vocate will  be  to  see  hoio  he  miay  turn  an  answer  to  his 
advantage.  His  adversary  may  not  be  a  very  skillful 
or  experienced  advocate;  he  may  be  an  indifferent 
cross-examiner:  in  which  event  the  advocate  may 
safely  trust  him  to  play  into  his  hands.  He  will  get 
portions  of  conversations  which  will  make  the  re- 
mainder admissible;  perhaps  put  in  documents  which 
will  give  him  the  same  advantage,  besides  affording 
him  the  right  of  reply;  and  if  the  advocate  have  been 
considerate,  he  will  have  left  his  opponent  to  follow 
up  a  question  or  two  put  for  the  express  purpose. 
This  does  not  imply  that  he  will  have  left  anything 
out  in  his  examination -in-chief  which  it  was  material 
to  prove ;  that  would  be  the  height  of  folly.  The  ad- 
vocate must  always  assume  that  his  opponent  will  not 
prove  his  case  for  him.  We  speak  only  of  matters 
which  he  himself  cannot  get  in,  and  which,  neverthe- 
less, have  an  important  bearing  upon  his  case. 

§  59.  Re-Examination  in  Cases  Where  Character  or 
Credibility  of  Witness  Has  Been  Attacked. — The  advo- 
•cate  must  watch  also  to  see  whether  any  attack  be 
made  upon  his  witness  in  cross-examination.  If  his 
■credibility  be  assailed  he  must  be  prepared  to  re- 
establish it  if  necessarjT^,  for  that  is  the  foundation 


RE-EXAMINATION.  69 

upon  which  his  evidence  rests ;  and  he  must  do  it  by 
questions  that  will  elicit  explanations  of  circum- 
stances left  doubtful,  by  removing  the  grounds  of 
suspicion,  and  giving  the  real  character  to  a  transac- 
tion capable  of  two  constructions.  When  this  is 
properly  done,  nothing  is  more  effective  with  a  jury; 
they  will  feel  as  though  they  had  been  relieved  of  a 
burden.  They  will  be  pleased  to  find  suspicion 
removed  from  a  person  whom  they  desire  to  believe; 
and  not  only  this,  the  impression  of  having  been  im- 
posed upon  will  also  be  removed,  and  their  minds, 
temporaril}^  disturbed,  will  settle  down,  as  it  were, 
into  a  state  of  tranquillity  and  satisfaction.  Cross- 
examination  as  to  character  is  at  most  times  an  un- 
certain performance.  One  never  can  be  sure  as  to 
the  view  the  jury  will  take.  It  is  the  part  of  an  ad- 
vocate's duty  which  they  least  like.  It  need  not  be 
said  it  is  the  advocate's  bounden  duty  to  protect  his 
witness  to  the  utmost  of  his  power.  Sometimes  he 
may  do  it  by  way  of  objection,  but  if  not,  he  must  ex- 
ercise his  best  skill  to  effect  his  purpose  by  re-exam- 
ination.^ 


'  One  instance  may  be  given,  of  many,  wFiere  character  was  once  cru- 
elly assailed  in  cross-examination  by  an  inexperienced  advocate,  and 
upon  whom  it  recoiled  with  crushing  severity.  He  aslvcd  a  witness  if 
he  had  not  been  convicted  of  felony.  In  vain  the  unfortunate  victim  in 
the  box  protested  that  it  had  nothing  to  do  with  the  case.  "Have  you 
not  been  convicted  of  felony?"  persisted  the  counsel.  "Must  I  answer, 
your  honor?"  "I  am  afraid  you  must,"  answered  the  judge.  "There 
is  no  help.  It  will  be  better  to  answer  it,  as  your  refusal,  in  any  event, 
would  be  as  bad  as  the  answer."  "I  have,"  uuiruiured  the  witness, 
under  a  sense  of  shame  and  confusion  very  plainly  manifest.  The  tri- 
umphant counsel  sat  down.  Not  long,  however,  was  his  satisfaction. 
In  re-examination,  the  witness  was  asked:  "When  was  it?"  A. 
^^Ticenty-nine  years  wjoT'  The  Judge:  "You  were  only  a  boy?"  Wit- 
ness: "Yes.  your  honor."  It  need  scarcely  be  added  that  a  just  and 
manly  indignation  burst  from  all  parts  of  the  court,  and  the  comments 
of  the  learned  judge  were  anything  but  complimentary  to  the  injudi- 
cious advocate. 


70  AMERICAN  ADVOCACY. 

When  questions  have  been  asked  on  cross-exami- 
nation as  to  character  and  have  failed,  it  is  far  better 
for  the  advocate  to  deal  with  the  matter  in  his  ad- 
dress to  the  jury  than  to  put  the  stereotyped  question 
in  re-examination:  "Is  there  any  pretense  for  sug- 
gesting," etc.,  etc.?  The  first  denial  answers  all 
purposes  for  the  time  being,  and  the  mere  repetition 
of  it  adds  no  weight;  besides,  the  natural  indignation 
arising  from  the  circumstance  will  be  all  the  better 
for  not  being  exploded  too  soon.  A  quiet  and  indig- 
nant protest  to  the  jury  will  be  all  that  is  necessary. 

§  60.  Pursuing  an  Equivocal  Reply  of  One's  Own  Wit- 
ness, Elicited  on  Cross-Examination.  —  Sometimes  a 
question  will  he  put  in  cross-examination  which  produces 
an  answer  not  unfavorable  to  either  side.,  hut  which  it 
Tnay  not  he  considered  safe  to  follow  up  hy  another.  The 
advocate  will  have  to  consider  whether  it  will  be  safe 
on  his  part  to  take  it  up  where  his  opponent  has  left 
it,  and  he  will  best  consider  this  by  weighing  the 
whole  of  the  facts  of  his  case  and  the  effect  of  the 
ansvjer  iphatever  it  might  he:  or  he  might  put  a  ques- 
tion or  two  by  way  of  test,  and  then  abandon  it  or 
not  as  the  answers  warranted.  Again,  the  opposing 
counsel  may  have  put  a  question  which  hap  ''let  in" 
something  as  a  basis  for  re-examination;  or,  on  the 
other  hand,  he  may  have  put  one  which  tempts  the  re- 
examiner  to  follow  it  up.,  and  by  that  means  may  have 
let  him  in.  The  utmost  caution,  therefore,  is  neces- 
sarj'^  in  pursuing  anything  that  has  been  started  by. 
the  adversarj^  He  is  by  no  means  a  safe  guide  to 
follow,  and  the  less  company  kept  with  him  the 
better. 

§  61.  Repetition  of  Evidence  in  Chief  on  Re-Examina- 
tion.— Above  all  things  it  should  be  remembered  that 
re-examination  does  not  consist  in  repeating  the  evidence- 
in-chief,  or  in  explaining  answers  that  are  in  the  re-ex- 


RE-EXAMII^ATION.  71 

amine)-'' s favor.  If  the  latter's  case  be  a  good  one  and 
his  witnesses  honest,  ver}^  little  will  be  left  to  do  at 
this  stage  of  the  proceedings.  If  it  be  a  bad  case 
and  his  witnesses  the  reverse  of  truthful,  all  the  re- 
examination in  the  world  will  not  set  them  up  as  they 
were  before.  It  is  of  immense  importance,  and  in- 
deed necessary  for  the  purpose  of  explaining  some- 
thing which  has  been  left  obscure,  or  removing  an 
erroneous  impression,  or  supplementing  some  matter 
which,  taken  by  itself,  looks  to  the  advocate's  disad- 
vantage; for  most  other  purposes  it  would  be  worse 
than  a  waste  of  time,  since  it  would  unquestionably 
injure  his  cause.  Re-examination  arises  from  a  right 
to  explain.  It  is  often  so  advantageous  that  a  case 
may  be  won  by  its  judicious  exercise,  while  it  is  usu- 
ally so  innocent  of  evil  that  it  would  require  the  ut- 
most ingenuity  of  the  most  inexperienced  counsel  to 
make  it  the  means  of  losing  one.  The  advocate  must 
have  a  thorough  knowledge  of  his  facts,  and  have 
watched  every  question  of  the  cross-examination 
with  the  utmost  vigilance,  to  take  the  full  benefit  of 
his  right  and  to  make  his  case  stand  out  in  the  bolder 
relief  which  the  cross-examination  will  afford  to  it. 
But  nothing  is  more  tedious  or  more  irritating  to 
judge  or  jury  than  to  see  an  advocate  floundering  in 
re-examination  among  facts  which  he  only  displaces 
and  confuses,  thinking  he  must  needs  ask  something 
because  there  has  been  a  long  and  it  may  be  severe 
cross-examination.  It  -should  he  fir^t  ascevtamed  what 
fact  han  been  displaced  or  obscured^  and  what  new 
matter  introduced^  and  then  the  advocate  will  know 
what  requires  to  be  re-arranged  and  what  to  be  ex- 
plained before  he  rises  to  put  a  single  question. 


CHAPTER  VII. 

SUMMING  UP  defendant's  CASE. 

§  62.     General  Considerations.         1  §  64.    Points  of  Danger. 
63.    Right  to  Argue  Upon  Ante- [     65.    Accuracy  and  Exaggeration, 
cedent  Evidence.  I 

§  62.  General  Considerations. — A  few  words  will  suf- 
fice for  this  subject.  Not  that  it  is  by  any  means  an 
unimportant  branch  of  advocacy.  On  the  contrary, 
it  is  as  invaluable  as  any  privilege  the  advocate  pos- 
sesses. It  should  be  remembered  that  summing  up 
defendant's  evidence  is  not  a  repetition  of  the  open- 
ing speech,  in  which  his  attorney  analyzed  the  plaint- 
iff's evidence  with  suflScient  skill  to  show  how  worth- 
less some  of  it  was,  and  what  residuum  was  left  to  be 
disposed  of  by  his  own  witnesses.  If  he  performed 
that  duty  half  as  well  as  he  should,  the  parts  that  he 
eliminated  are  gone  forever.  It  only  remains,  there- 
fore, to  meet  the  matters  that  require  answering 
with  evidence  on  his  part.  He  has  now  abundant 
scope  for  his  powers  of  reasoning  and  for  analytical 
comparison.  There  may  be  some  opportunity,  also, 
for  something  of  declamation,  of  eloquence  and  earn- 
estness— it  may  be,  of  pathos  itself.  But,  if  so,  it 
should  be  remembered  that  it  is  the  pathos  of  facts 
and  the  eloquence  of  facts  ^  too,  that  he  most  needs:  if 
these  fail,  he  might  just  as  well  beat  a  tambourine 
and  imagine  himself  an. orchestra. 


SUMMING   UP   defendant's   CASE.  73 

§  63.  Right  to  Argue  Upon  Antecedent  Evidence. — 

It  is  not  absolutely  forbidden  to  argue  upon  antece- 
dent evidence,  although  the  defendant's  attorney- 
has  but  the  bare  right  to  "sum  up."  The  sum  total 
may  be  not  only  his  own  evidence,  but  that  evidence 
supplemented  in  matter  and  weight  by  the  evidence 
of  plaintiff  and  his  witnesses.  No  rule  can  be  laid 
down  in  this  particular,  nor  will  the  judge  be  over- 
strict  in  keeping  the  defendant's  attorney  upon  the 
direct  line  of  his  evidence. 

§64.  Points  of  Danger. — As  the  reply  will  follow  the 
speech  of  defendant's  attorney,  he  will, of  course,  cal- 
culate what  are  the  points  likely  to  be  made  against 
him,  and  if  he  has  any  knowledge  of  character  at  all, 
he  will  know  what  points  have  most  impressed  his  ad- 
versary. Nearly  all  the  cards  having  been  plaj^ed,  he 
ought  to  know  exactly  what  are  left  in  his  opponent's 
hand.  He  must,  as  a  matter  of  course,  strengthen 
those  points  which  are  likely  to  be  assailed,  and  bring 
into  strong  prominence  those  portions  of  his  case 
which  are  established  beyond  the  reach  of  eloquence. 

If  he  has  kept  his  eyes  open,  he  will  not  be  misled 
by  any  feint  that  may  have  been  made  by  his  oppo- 
nent. If  the  latter  has  discovered  a  weakness  in  the 
defendant's  case  which  defendant's  attorney  does  not 
perceive,  it  will  be  little  short  of  a  calamity  for  his 
client  when  plaintiff's  counsel  comes  to  reply* 
This  so  often  happens,  that  the  greatest  vigilance  is 
necessary  from  the  moment  the  case  is  launched  till 
the  last  witness  has  been  re-examined. 

What  word  or  remark  of  a  witness  may  be  the  turn- 
ing-point in  a  case,the  defendant's  attorney  can  never 
tell.  What  may  be  the  test  which  the  jury  will  apply 
to  the  evidence  he  can  but  surmise;  but  that  no  word 
should  escape  his  attention  is  as  certain  as  that,  in 


74  AMERICAN   ADVOCACY. 

surveying  the  ocean  bed,  no  rock  or  prominence  can 
be  left  unnoted  with  safety  to  the  mariner. 

§  65.  Accuracy  and  Exaggeration. — One  iurther  ob- 
servation will  be  made.  In  summing  up,  the  defend- 
ant's attorney  should  be  sure  he  exhibits  the  qualities 
of  a  good  arithmetician;  otherwise,  he  may  upset  the 
calculations  of  his  own  witnesses.  The  jury  will  tol- 
erate no  false  casting  up.  They  will  require  a  cor- 
rect total,  whatever  they  may  think  of  the  individual 
items.  Some  they  may  disallow,  others  they  may 
admit,  if  the  advocate's  total  be  accurate ;  if  not,  they 
may  reject  the  whole  with  disgust  or,  even,  disap- 
j)ointment.  He  should  bear,  also,  in  mind  that  if  he 
have  two  twos  he  need  not  labor  to  convince  the  jury 
that  the  total  is  four;  and,  above  all  things,  he  should 
be  careful  that  he  does  not  attempt  to  prove  that  it 
amounts  to  five. 


CHAPTER  VIIT. 


THE  REPLY. 


66.  Value  of  the  "Last  Word." 

67.  Securing  Attention  of  Court 

and  Jury. 

68.  Flattering  the  Jury. 

69.  Display  of  Self-Confidence. 

70.  Personal  Attack  on  Oppo- 

nent or  His  Counsel. 

71.  Effect  of   an    Earnest    and 

Quiet  Manner. 

72.  Order  and  Arrangement  of 

the  Reply. 

73.  Attacking  Opponent's  Case 

First. 


§  74.  Dealing  with  the  Effect  of 
the  Testimony,  Not  the 
Testimony  Itself. 

75.  Importance  to  be  Attached 

to  the  Probabilities  of  the 
Evidence. 

76.  Conciseness  in  the  Reply. 

77.  The  Use  of  Illustrations  and 

Conventional  Phrases. 

78.  Appeals  to  Passion  or  Pre- 

judice. 

79.  A  Temperate  and  Accurate 

Style. 

80.  The  Peroration. 


§  66.  Value  of  the  "Last  Word." — The  reply  is  al- 
ways of  great  importance,  and  a  struggle  is  fre- 
quently made  for  the  "last  word."  Many  persons 
affect  to  disbelieve  in  it,  but  certainly  not  those  who 
are  able  bj'"  their  eloquence  to  avail  themselves  fully 
of  its  advantages.  Even  evidence  itself  is  sometimes 
sacrificed  for  the  sake  of  the  reply,  although  if  the 
evidence  be  of  the  smallest  value  this  is  hardly  a 
course  which  ought  to  be  pursued.  However  power- 
ful arguments  may  be,  facts  are  more  powerful  still. 
Nevertheless,  it  is  frequently  a  question  whether  the 
advocate  will  rely  on  his  address  for  the  verdict  or 
call  witnesses  and  give  the  reply  to  his  opponent. 
Under  any  circumstances,  however, — except  in  a  case 


76  AMERICAN   ADVOCACY. 

where  one  advocate  is  powerful  and  the  other  weak 
of  speech — the  reply  is  a  valuable  privilege.  Some 
speeches,  doubtless,  are  worse  than  none  at  all,  and 
may  even  assist  the  other  side  by  means  of  contrast. 

§  67.  Securing  Attention  of  Court  and  Jury. — No  one 
will  doubt  that  the  first  thing  to  do  is  to  secure  the 
attention  of  the  jury.  The  next,  that  of  the  judge. 
Although  this  is  named  second,  it  is  very  often  of  the 
first  importance,  as,  frequently,  when  the  advocate 
has  not  the  jury  with  him,  he  may  win  by  having  the 
judge.  The  latter 's  influence  is  always  powerful; 
therefore,  the  advocate  should  gain  his  attention  if 
he  can.  If  the  judge  take  the  advocate's  view  of  law  and 
facts,  the  verdict  follows  either  there  or  elsewhere. 
He  will,  however,  take  at  times  a  somewhat  different 
view  both  of  the  facts  and  the  law;  and  then,  in  spite 
of  opposition,  the  advocate  must  endeavor  to  win  his 
way  with  the  jury.  This  is  the  object  of  the  reply, 
as  of  the  other  processes  of  the  case.  And  how  to 
accomplish  it  is  a  question  on  the  consideration  of 
which  too  much  time  and  study  cannot  well  be  be- 
stowed. 

§  68.  Flattering  the  Jury. — In  conciliating  a  jury,  so 
as  to  put  them  on  good  terms  with  him  and  secure  their 
attention,  the  advocate  should  be  careful  not  to  adopt  a 
practice  too  common  with  young  advocates,  namely, 
that  Qii  flattering  them.  The  advocate  must  not  forget 
that  their  nature  is  by  no  means  changed  because 
they  are  in  the  jury-box.  Stroking  a  jury  is  not  a  dig- 
nified proceeding;  talking  about  their  intelligence,  as 
though  it  were  necessary  to  remind  them  that  they 
are  not  altogether  fools,  is  the  worst  means  to  make 
them  belive  in  the  advocate'' s  intelligence  or  knowledge 
of  mankind.  Nor  do  they  need  to  be  informed  that 
they  are  Americans;  those  who  are  know  the  fact; 
those  who  are  not  take  it  as  no  compliment  to  their 


THE   REPLY.  77 

nationality.  Again,  obtruding  upon  them  the  infor- 
mation that  they  are  sensibh  men  will  not  improve 
their  opinion  of  the  advocate  or  interest  them  in  any 
way.  What  the  advocate  has  to  do  is  not  to  convince 
them  that  they  are  sensible,  but — that  he  is!  Nor  is 
it  necessar}^  to  remind  them  that  he  is  "quite  certain 
that  they  will  take  an  honest  and  impartial  view  of  the 
facts;"  this  is  not  repljdng,  nor  is  it  rhetoric;  it  is 
the  flimsiest  of  claptrap.  Hackneyed  expressions  are 
always  ineffective,  stale,  and  irritating;  they  show  a 
poverty  of  idea  as  well  as  language,  and  exhibit  the 
weakest  style  of  advocacy.  There  is  no  necessity  to 
argue  with  the  jury  upon  their  honesty,  as  though 
there  were  some  doubt  about  it;  or  their  impartiality, 
as  if  the  advocate  had  a  suspicion  that  they  were  be- 
ing influenced  by  a  strong  interest  on  the  other  side. 
Any  observations  will  be  simply  foolish  that  have  for 
their  object  the  inducing  the  jury  to  believe  in  them- 
selves ;  a  far  better  attempt  will  be  to  make  them  be- 
lieve in  the  advocate  himself. 

§  69.  Display  of  Self-Confidence.  —  The  advocate 
should  convince  the  jury  that  he  believes  in  himself. 
No  one  can  overestimate  the  value  of  faith  in  one's 
self.  By  this  is  not  meant  an  obtrusive  self-confi- 
dence or  conceit,  but  an  earnest  and  unassuming  self- 
j-eliance.  Belief  is  a  great  power,  and  always  lends 
something  to  effort.  Belief  in  self  has  produced  some 
of  the  greatest  successes  the  world  has  seen.  George 
^Eliot  says:  "The  greater  part  of  the  worker's  faith 
in  himself  is  made  up  of  the  faith  that  others  believe 
in  him."  So,  faith  acts  and  reacts.  Of  the  two,  it  is 
preferable  that  an  advocate  believe  in  himself  rather 
than  in  his  case.  If  he  believe  in  both,  the  case  should 
be  considered  as  good  as  won.' 

1  '"If,"  says  Whately,  "the  pleader  can  induce  a  jury  to  believe  not 
only  in  bis  own  general  integrity  of  character,  but  also  in  his  sincere 


78  AMERICAN  ADVOCACY. 

§  70.  Personal  Attack  on  Opponent  or  His  Counsel. — 

Another  bad  way  for  an  advocate  to  begin  a  reply  is 
to  attack  his  opponent  or  his  solicitor,  or  the  client. 
The  jury  care  for  none  of  them.  He  has  to  demolish 
the  case  of  his  opponent,  not  him.  Besides,  abuse  is 
neither  argument  nor  advocacy;  and  any  personal  at- 
tack is  mere  abuse,  except  when  it  is  used  to  denounce 
a  witness  whose  evidence  requires  to  be  so  dealt  with. 
Nor  will  it  assist  the  advocate's  case  to  answer  any 
attacks  which  his  opponent  may  foolishly  have  made 
upon  him.  He  should  avoid  being  drawn  from  legiti- 
mate argument  into  a  personal  encounter.  The  dis- 
pute is  not  his,  but  his  client's,  and  it  is  extremely 
selfish  to  indulge  in  a  personal  conflict  at  the  latter 's 
expense.  If  anything  has  been  said  which  required 
an  answer  from  the  advocate,  the  time  for  giving  it 
was  at  the  moment  of  the  utterance.  When  the  ad- 
vocate undertakes  to  reply,  it  is  not  his  case,  but  that 
of  his  client,  that  demands  the  individual  attention  of 
the  jury. 

§  71.    Effect   of   an   Earnest    and    Quiet   Manner, — 

Securing  the  attention  of  the  jury  is  as  much  due  to 
the  manner  in  which  the  advocate  addresses  his 
hearers  as  the  substance  of  what  he  says.  The  most 
thorough  earnestness  is  the  all-important  quality 
either  to  possess  or  to  assume.  A  quiet  colloquial  sen- 
tence or  two,  with  not  too  much  of  solemnity,  uttered 
as  if  he  had  the  fullest  confidence  in  them  without 
telling  them  so,  and  as  if  he  also  had  the  fullest  con- 
fidence in  himself,  without  asserting  it,  will  be  pretty 


conviction  of  the  justice  of  his  client's  cause,  this  will  give  great  addi- 
tional weight  to  his  pleading,  since  he  will  thus  be  regarded  as  a  sort  of 
witness  in  the  cause.  And  this  accordingly  is  aimed  at,  and  often  with 
success,  by  practiced  advocates.  They  employ  the  language  and  assume 
the  manner  of  full  belief  and  strong  feeling." 


THE   REPLY.  79 

sure  to  establish  a  good  understanding  between  him 
and  the  jury  at  the  commencement.  If  he  cannot 
succeed  in  this  his  address  will  have  little  effect, 
however  powerful;  whereas  if  he  do  succeed,  every 
argument  will  have  weight  in  proportion  to  its  rele- 
vancy to  the  issue. 

§  72.  Order  and  Arrangement  of  the  Reply. — The 
next  thing  to  be  attended  to  now,  although  it  was  the 
first  thing  to  prepare  before  the  advocate  rose,  is  the 
order  and  arrangement  of  his  speech.  No  address  can 
be  good  without  this,  and  it  cannot  be  altogether  bad 
with  it.  The  minds  of  the  hearers  will  more  easily 
follow  and  appreciate  the  address  when  they  are 
taken  along  the  order  of  circumstances  as  they  oc- 
curred, or,  to  speak  figuratively,  the  main  road,  than 
if  led  a  steeple  chase  across  country.  The  advocate 
should  so  arrange  the  arguments  that  the  jury  can 
see  what  is  to  follow  as  he  advances  along  the 
line  of  facts,  and  it  will  appear  as  if  it  must  be 
correct,  because  the  one  fact  follows  so  naturally 
upon  another.  The  whole  case  is  spread  out  before 
the  jury  like  a  map,  and  the  better  its  divisions 
are  traced  the  more  fully  will  their  relative  bear- 
ings be  understood.  This  will  be  the  result  of 
a  due  order  and  arrangement  of  the  reply.  The 
g;dvocate's  opponent  has  made  his  c  omments  upon 
the  case;  has  put  prominently  forward  his  own  facts 
and  placed  plaintiff's  as  far  as  possible  in  the  shade; 
has  damaged  some  and  demolished  others.  The 
plaintiff's  attorney  must  now  not  onl}''  perform  a  like 
process  with  regard  to  the  case  of  his  opponent,  but 
must  throw  light  into  the  dark  places  and  draw  out 
his  own  facts  from  their  temporary  obscurity. 

^  73.  Attacking  Opponent's  Case  First. — The  best 
advocates  (who  invariably  proceed  by  system)  as  a 
general  rule  adopt  the  course  of  grappling  with  their 


80  AMERICAN  ADVOCACY. 

opponent's  case  first.  It  is  fresh  in  the  minds  of  the 
jury,  and  the  best  time  to  deal  with  it  is  before  it  has 
been  long  enough  there  to  make  a  deep  impression. 
If  the  advocate  return  to  it  after  dealing  with  his 
own  case,  he  attacks  instead  of  removing  it,  and  may 
leave  it  still  the  last  and  deepest  impression.  In 
doing  this,  care  must  always  be  taken  by  the  plaint- 
iff's attorney  to  avoid  dwelling  onminor  discrepancies 
in  his  opponenfs  evidence  or  upon  the  trivialities  of  the 
case.  Minute  criticisms  impair  the  force  of  an  ad- 
dress like  grains  of  dust  in  the  wheels  of  machinery. 
They  produce  friction  and  retard  instead  of  advancing 
the  cause.  The  jury  are  apt  to  think  the  advocate 
has  nothing  better  to  urge,  and  when  he  comes  to 
greater  matters,  he  will  be  jaded  and  wearied,  and  a 
good  deal  of  the  effect  of  his  speech  will  be  lost. 
He  cannot  assign  any  position  in  which  trivial  criti- 
cism should  be  placed,  and  the  probability  is,  there- 
fore, that  it  will  be  out  of  place  anywhere.  If  he  at- 
tempt it  before  coming  to  his  main  arguments  the 
jury  will  be  wearied,  and  if  after,  his  arguments  will 
lose  some  of  their  force.  Besides  this,  he  endows 
trifles  with  a  fictitious  importance.  He  places  them 
before  the  jury  and  magnifies  them  as  though  he 
brought  them  under  a  lens.^ 

§  74.  Dealing  With  the  Effect  of  the  Testimony, 
Not  the  Testimony  Itself. — It  should  also  be  borne  in 
mind  by  the  advocate  in  replying,  that  what  he  has 
really  to  deal  with  is  not  the   testimony  of  the  wit- 

1  Whatelysays:  "Too  earnest  and  elaborate  a  refutation  of  argu- 
ments which  are  really  insignificant,  or  which  their  opponent  wishes 
to  represent  as  such,  will  frequently  have  the  effect  of  giving  them  im- 
portance. Whatever  is  slightly  noticed  and  afterwards  passed  by  with 
contempt,  many  readers  and  hearers  will  very  often  conclude  (some- 
times for  no  better  reason)  to  be  really  contemptible.  But  if  they  are 
assured  of  this  again  and  again  with  great  earnestness  they  often  begin 
to  doubt  it."" 


THE   REPLY.  81 

nesses,  but  the  effect  of  it,  or  the  real  evidence  to  which 
it  is  reduced  by  process  of  examination.^ 

If  the  advocate  can  deal  with  the  effect  of  the  evi- 
dence instead  of  with  the  truthfulness  of  a  witness, 


1  A  was  tried  some  time  since  by  Mr.  Justice  (now  Lord  Justice) 
Brett.  The  action  was  brought  by  the  owner  of  a  valuable 
horse,  against  a  farrier,  for  negligence,  by  improperly  shoeing;  in  con- 
sequence whereof  the  horse  fell  lame  and  had  to  be  killed.  The  plaint- 
iff endeavored  to  prove  that  the  hind  shoes  of  horses  were,  to  use  a 
familiar  expression,  "rights  and  lefts."  The  defendant  swore  that  this 
was  a  total  erroneous  supposition.  His  witnesses  testified  to  the  same 
■effect.  Perjury  was  not  attributed  to  any  of  them.  They  seemed  to 
believe  their  own  testimony,  and  the  plaintiff  was  not  prepared  with 
evidence  to  the  contrary,  as  the  point  arose  during  the  trial  from  an 
examination  of  the  shoe  by  the  counsel,  who  placed  it  in  the  hands  of 
the  defendant,  and  asked  whether  it  was  not  made  for  the  near  foot. 
The  witness  said  it  would  do  for  either  the  near  or  off  foot.  He  was 
then  pressed  as  to  whether  he  would  put  it  on  either  the  one  or  the 
other,  as  it  might  chance.  He  -answered,  yes.  The  nails  were  now 
placed  through  the  holes,  which,  being  properly  beveled,  gave  to  their 
points  on  the  one  limb  of  the  shoe  an  outward  direction,  and  on  the 
■other  side  a  different  inclination.  The  defendant  was  asked  whether, 
looking  at  that  fact,  he  was  prepared  to  say  tho  shoe  was  not  made  tor 
the  near  foot.  He  said  it  was  not.  He  was  then  asked  how  it  was  that 
the  nailR  in  the  two  sides  pointed  at  different  angles?  Answer:  "It 
■was  the  fashion."  The  Judge:  "The  fashion  with  all  farriers?" 
Answer:  "Yes."  In  summing  up,  the  learned  judge  (taking  the  testi- 
mony of  the  witnesses,  and  judging  it,  not  by  its  truth  but  from  its 
effect)  said,  "If  you  find  a  general  mode  of  doing  a  particular  thing 
jou  may  depend  upon  it  there  is  some  good  reason  for  so  doing  it, 
■especially  where  it  obtains  universally  in  some  mechanical  business. 
If  all  farriers  make  horse-shoes  with  beveled  holes  slanting  in  one  di- 
rection on  one  side,  and  in  another  direction  on  the  other,  you  may  be 
«ure  that  is  not  done  from  mere  caprice.  What  is  the  effect  of  the  testi- 
mony? It  is  to  show  that  if  the  shoe  on  which  the  nails  slant  in  a  par- 
ticular direction  be  placed  on  the  off  foot,  that  they  will  come  out 
through  the  hoof  and  enable  the  farrier  to  clench  them ;  but  if  the  shoe 
be  fixed  on  to  the  near  foot,  they  will  have  a  tendency  to  penetrate  the 
frog  of  the  foot,  and  so  cause  pain  and  lameness  to  the  animal.  Tho 
question  is,  was  that  tlie^case  here?  Was  a  shoe,  intended  for  the  off 
foot,  fastened  to  the  near  one?"  The  jury  came  to  the  conclusion  that 
that  had  been  the  case  from  the,  effect  of  the  evidence;  the  {testimony,  un- 
■contradlcted,  being  directly  to  the  contrary, 
6 


82  AMERICAN   ADVOCACY. 

it  need  hardlj^  be  said  it  will  be  so  much  the  better 
for  his  case;  so,  also,  if,  instead  of  attacking  the  cred- 
ibility of  a  witness,  he  dispute  accuracy,  his  memory 
or  judgment.^ 

Juries  never  like  to  believe  that  a  witness  has  com- 
mitted perjury,  especially  if  he  have  no  iuterest  in 
the  case.  Nor  does  it  please  them  ^o  hear  character 
assailed.  If  the  advocate  fall  foul  of  the  jury  in 
these  respects,  he  may  as  well  sit  down  for  all  the 
good  he  can  do  his  client.  The  effect  of  the  testimony 
then  is  what  the  advocate  has  to  deal  with  in  reply* 
But  if  it  becomes  necessary,  as  it  sometimes  must, 
to  ask  the  jury  to  disbelieve  a  witness,  and  the  advo- 
cate can  put  it  on  no  easier  ground  than  that  he  is  un- 
truthful, he  should  avoid  doing  it  by  denunciation ;  that 
is  only  to  be  used  in  extreme  cases,  where  virtuous 
indignation  will  do  some  mischief  to  the  inner  man  if 
pent  up  longer;  but  he  will  find  "half  steam  up,"  will 
carry  him  along  quite  fast  enough  in  any  event.  His- 
just  indignation  should  onl}^  be  sufficiently  let  off, 
that  it  may  communicate  itself  to  the  pent-up  indig- 
nation of  the  jur}^,  and  let  that  off  with  it  in  the  shape 
of  a  verdict.  The  best  way  of  asking  a  jury  to  dis- 
believe an  opponent's  witness  is  to  call  attention  to  the 
evidence  of  one  or  two  of  the  speaker's  own  witnesses. 
Some  matters  will  depend  partly  upon  the  facts  and 
partly  upon  the  witness'  judgment  or  understanding 
of  those  facts  to  which  he  speaks ;  his  view  may  be 
entirely  wrong,  and  his  conclusion,  which  he  puts 
forward  as  a  fact,  wrong  also.^ 

1  "Men  are  apt,"  says  Whately,  "to  judge  amiss  of  situations,  persons, 
and  circumstances,  concerning  which  they  have  no  exact  knowledge, 
by  applying  to  these  the  measure  of  their  own  feelings  and  experience, 
the  result  of  which  is  that  a  correct  account  of  these  will  often  appear 
to  them  unnatural  and  an  erroneous  one  natural,'' 

2  Whately  confirms  this  statement.  "If,"  he  says,  "a  person  states 
he  saw  in  the  East  Indies  a  number  of  persons  who  had  been  sleeping 


THE   REPLY.  83 

§  75.  Importance  to  be  Attached  to  the  Probabilties  of 
the  Evidence.  —  Probabilities  are  of  more  value 
thaD  possibilities.  Juries,  like  other  people,  attach 
more  weight  to  them.  They  are  extremely  valuable 
in  replj^  and  should  be  made  the  most  of.  Oppor- 
tunities which  the  witnesses  had  of  seeing  or  know- 
ing that  which  they  depose  to  is  also  a  matter  of  the 
highest  moment.  The  means  of  forming  a  judgment 
is  another,  and  all  these  may  be  used  with  a  jury  in 
short  and  terse  argument  for  the  purpose  of  obtain- 
ing an  adverse  opinion  to  the  evidence,  without  the 
necessity  of  asking  them  to  say  it  is  perjured.  The 
advocate  should  exhaust  all  argument  before  he  comes 
to  that,  unless  he  knows  that  perjury  has  been  com- 
mitted, and  then  he  should  come  to  it  boldly  and  at 
once,  without  giving  the  perjurer  an  opportunity  of 
escape.  He  will  have  observed  that  he  has  left  for  a 
moment,  but  for  a  moment  only,  the  line  marked  out, 
of  dealing  with  his  opponent's  case  before  presenting 
his  own.  But  it  is  necessary,  in  order  to  conti'ast 
the  evidence,  and  will  materially  assist  him  in  deal- 
ing with  that  of  his  opponent.  It  will  not  interfere 
with  the  course  of  the_]advocate's  argument,  but  will 
be  advantageous  to  it  when  he  comes  to  review  the 
facts  of  his  own  case.  * 


exposed  to  the  moon'slrays,  afflicted  with  certain  symptoms,  and  that 
after  taking  a  certain  medicine  they  recovered,  he  is  bearing  testimony 
as  to  simple  matters^of  fact;lbut  if  he  declare  that  the  patients  were  so 
affected  in  consequence  of  the  moon's;  rays — that  such  is  the  general 
effect  of  them  in  that  climate,  his  testimony,  however  worthy  of  credit, 
Is  borne  to  a  different  kind  of  conclusion,  namely,  not  an  individual  but 
a  general  conclusion,  and  one(which  will  rest  not  solely  on  the  veracity, 
but  also  on  the  judgment  of  the  witness. 

"Even  in  the  other  case,  however,  when  the  question  relates  to  what 
is  strictly  a  matter  of|fact,  the  intellectual  character  of  the  witness  is 
not  to  be  wholly  left|out  of  the  account.  A  man  may  be  strongly  in- 
fluenced by  prejudice — to  which  the  weakest  men  are  ever  the  most  liable, 
—may  even  fancy  he  sees  what  he  does  not." 


84  AMERICAN   ADVOCACY. 

§  76.  Conciseness  in  tlie  Reply.  — At  all  times  the 
advocate  should  be  concise,  but  especially  at  this 
stage,  and  as  short  as  may  be.  If  he  is  not  a  good 
speaker  it  will  be  better  to  be  brief,  because  indif- 
ferent speaking  does  not  tell  very  much ;  and  he  may 
well  be  brief  if  he  is  a  good  speaker,  because 
good  speaking  tells  a  great  deal.  A  good  speech,  how- 
ever short,  goes  all  the  way,  but  a  stretch  of  mere 
windy  talk  invariably  stops  short  of  its  object.  But 
even  a  good  speaker  should  guard  against  smother- 
ing-his  points  with  too  many  words;  the  most  fluent 
advocates  require  most  pruning  at  the  commence- 
ment. All  that  is  wanted  is  to  so  place  the  facts  that 
they  will  stand  out  boldly  defined,  like  fruit  upon  a 
wall-tree  where  there  is  not  too  much  wood.  Almost 
a  barrenness  of  language  rather  than  an  exuberance 
will  be  beneficial.  The  advocate  must  avoid  clothing 
a  fact  with  the  drapery  of  fine  language,  and  also  the 
making  too  many  points  at  once.  Let  each  be  made 
distinctly  and  separately,  as  though  it  were  a  work 
of  art  and  made  for  the  jury's  critical  examination; 
and  when  once  made  let  it  alone. 

§  77.  Tlie  Use  of  Illustrations  and  Conventional 
Phrases. — There  is  a  matter  which,  but  for  its  con- 
stant recurrence,  it  would  not  be  necessary  to  men- 
tion, and  that  is,  that  conventional  phrases  should,  as 
a  rule,  be  avoided ;  so  should  stale  adages,  which  from 
common  use  become  only  one  remove  from  slang  itself; 
they  show  a  poverty  of  ideas  and  a  lack  of  originality, 
besides  enfeebling  the  address.  A  man  does  not  do 
himself  justice  when  he  has  recourse  to  a  common- 
place saying  for  the  purpose  of  illustrating  a  point. 
It  is  neither  ornamental  nor  argumentative,  and  is 
more  adapted  to  the  Peep-show  than  the  Forum.  But 
the  great  danger  attending  commonplaces  is  that  they 
are  so  feeble  and  so  easily  demolished.     What  is  the 


THE   REPLY.  85 

use  of  "Gentlemen,  there  is  an  old  saying  that  good 
wine  needs  no  bush,"  etc.,  etc., against  a  speaker  who 
follows  with  sound,  logical  argument;  or,  if  it  be  a 
matter  of  pure  inference,  who  meets  such  rubbish 
with  the  strong  and  forcible  language  of  common 
sense?  The  "old  saying"  may  provoke  a  laugh,  but 
the  new  saj^ing  is  the  one  that  will  make  the  impres- 
sion. Not  that  illustrations  are  to  be  ignored :  they 
are  among  the  most  useful  of  all  the  means  employed 
by  the  rhetorician.  They  bring  home  the  meaning 
with  a  force  and  power  that  nothing  can  surpass;  but 
the  illustration,  if  nothing  else,  should  be  original. 
It  should  be  a  flash  from  the  speaker's  own  mind,  not 
a  mere  reflection  of  someone  else's  lantern,  however 
brilliantly  it  may  burn.^ 

§  78.  Appeals  to  Passion  or  Prejudice. — The  advo- 
cate has  already  been  advised  against  a  too  liberal 
exhibition  of  emotion.  It  need  scarcely  be  added 
that  appealing  to  the  passions  of  a  jury,  in  reply,  in 
a  direct  manner  is  out  of  place  and  unfair.  They  are 
not  to  determine  by  passion  or  feeling,  and  attempts 
to  arouse  the  emotions  may  mislead  the  judgment. 
The  sympathies  of  the  jury  are  a  proper  subject  to 
reach  if  the  advocate  can  do  it  by  the  facts,  and  not 
by  meretricious  sentiment;  this  is  a  legitimate  exer- 
cise of  the  art  of  advocacy  and  of  the  powei-s  of  elo- 
quence; and  the  art  consists  in  so  presenting  the  facts 
that  they  will  accomplish  that  which  the  advocate  is 
forbidden  to  attempt.  Any  attempt,  however,  to  in- 
fluence a  jury  by  an  appeal  to  their  feelings  is  certain 
to  meet  with  reprobation.  It  is  clumsy  and  coarse, 
at  the  best,  and  as  bad  as  an  open  act  of  intimidation; 


*  Whately  say? :  "There  is  very  little,  comparatively,  of  energy  pro- 
Juced  by  any  metaphor  or  simile  tliat  is  in  coniinon  use  and  already 
familiar  to  the  hearer."  An  illustration,  however  liome1y»  if  original 
and  apt,  is  always  pleasing  and  forcible. 


86  AMERICAN  ADVOCACY. 

if  the  advocate  cannot  reach  their  sympathies  without 
a  violent  attack,  he  had  better  rest  upon  his  facts  and 
reserve  his  pathos  for  his  client.  Nor  will  he  ever 
succeed  in  getting  the  judge  with  him  if  he  openly 
attempt  to  introduce  prejudice.  It  is  a  kind  of  rhe- 
torical burglary,  which  none  but  those  who  cannot 
effect  their  object  by  other  means  would  ever  perpe- 
trate. It  is  logically  wrong,  as  well  as  morally.  If 
the  circumstances  are  such  as  .  naturally  excite  the 
sympathies  of  the  jury  in  favor  of  the  advocate's  cli- 
ent, he  has  no  need  to  make  a  flourish  of  trumpets  to 
announce  the  fact;  if  they  are  not  such,  he  will  fail  to 
move  the  jur}^  bj^  the  employment  of  feeble  arts  for 
that  purpose;  besides  which,  he  will  probably  set  the 
judge  against  him,  if  not  against  his  case;  for, he  may 
be  sure  that,  in  his  desire  to  do  justice  between  the 
parties,  the  judge  will  do  his  best  to  prevent  such  an 
advocate  winning  by  unfair  means. 

§  79.  A  Temperate  and  Accurate  Style. — A  reply 
should  be  comprehensive  and  compact;  it  should  be 
temperate  as  well  as  bold.  In  its  moderation  will  be 
its  strength.  Violence  of  language  is  invariably  weak; 
loudness  of  tone  but  a  noisy  accompaniment,  at  the 
best,  which  stuns  the  ear  instead  of  making  the 
speaker  heard.  With  a  tone  always  above  the  natural 
key,  there  can  be  no  modulation,  which  is  the  music 
of  oratory ;  the  effect  of  which  is  to  entertain  while 
the  feast  of  reason  proceeds.^ 


1  Lord  Brougham  said  of  Erskine:  "Juries  have  declared  that  they 
felt  it  impossible  to  remove  their  looks  from  him  when  he  had  riveted, 
and,  as  it  were,  fascinated  them  by  his  first  glance.  Then  hear  his  voice 
of  surpassing  sweetness,  clear,  flexible,  though  exquisitely  fitted  to 
strains  of  earnestness/'  "His  action,"  says  Espinasse,  "was  always  ap- 
propriate, chaste,  easy,  na4;ural.  *  *  *  the  tones  of  his  voice,  though 
sharp,  were  full,  destitute  of  any  tinge  of  Scotch  accent,  and  adequate  to 
any  emergency — almost  scientifically  modulated  to  the  occasion.'''' 


THE    REPLY.  ^  87 

An  advocate  may  overdo  his  own  facts,  or  say 
too  much  against  those  of  his  opponent;  and  it  is  a 
good  thing  at  the  bar,  as  soon  as  the  advocate  can  do 
so,  to  "let  his  moderation  be  known  unto  all  men." 
And  moderation  in  voice  is  no  less  pleasing  than  in 
language.  Some  men  shout  so  in  reply  that  one  would 
think  the  jury  some  poor  shipwrecked  wretches  on 
a  rock,  while  one  from  shore  was  trying  to  make  him- 
self heard  above  the  tempest. 

§  80.  The  Peroration. — A  word  as  to  the  perora- 
tion, which  should  not,  like  the  end  of  a  squib,  be  all 
bang,  nor  like  the  finish  of  a  rocket,  all  stars  above 
every  one's  head.  What  it  should  be  is  a  common- 
sense  and  pleasant  finish — attractive,  impressive,  and 
as  polished  as  may  be.  It  should  leave  upon  the  mind 
a  pleasing  recollection.  It  should  be  well  constructed, 
appropriate,  and  short.  As  the  exordium  is  intended, 
with  a  few  well-chosen  words,  to  secure  the  hearer's 
attention,  so  the  peroration  is  designed  to  leave  upon 
his  mind  the  satisfaction  that  his  attention  has  been 
well  bestowed.^ 


1  The  following  is  a  peroration  from  Erskine's  speech  for  the  Bishop 
of  Bangor,  which  may  be  useful  as  something  more  than  a  mere  exam- 
ple of  peroration : 

"I  cannot  endure  the  humiliation  of  fighting  with  a  shadow  and  the 
imprudence  of  giving  importance  to  what  I  hold  to  be  notkitKj,  by  put- 
ting anything  in  the  scale  against  it,  a  conduct  which  would  amount  to  a 
confession  that  something  had  been  proved  which  demanded  an  answer. 
How  far  those  from  whom  my  instructions  come  may  thinlc  me  war- 
ranted in  pursuing  this  course,  I  do  not  Ivnow;  but  the  decision  of  that 
question  will  not  rest  with  either  of  us,  if  your  good  sense  and  con- 
sciences should,  as  I  am  persuaded  they  will,  give  an  immediate  and 
seasonable  sanction  to  this  conclusion  of  the  trial."' 


CHAPTER  IX. 


CONDUCT  OF  A  CRIMINAL  PROSECUTION. 


§  81.    Order  of  a  Criminal  Trial. 

82.  Prosecution  not  Persecution. 

83.  Opening  Statement — Avoid- 

ing Argument. 

84.  Opening  Statement — Avoid- 

ing Exaggeration. 

85.  Opening  Statement  —  Con- 

ventional and  Undignified 
Phrases. 

86.  Opening  Statement — Stating 

Personal  Belief  as  to  Guilt 
of  Accused. 

87.  Opening  Statement  —  Inter- 

preting the   Indictment  to 
the  Jury. 

88.  Opening  Statement  —  Only 

Facts  Bearing  Directly  on 
the  Issue  to  be  Stated. 

89.  Opening  Statement — Antici- 

pating the  Defense. 


§  90.    The  Evidence  —  Order  and 
Arrangement. 

91.  The  Evidence  —  Overlaying 

the  Case  with  Too  Much 
Evidence. 

92.  The  Evidence  —  Police  Tes- 

timony Not  to  be  Implic- 
itly Relied  Upon. 

93.  The  Evidence — Concentrat- 

ing Attack  on    Main  De- 
fenses of  Accused. 

94.  The  Evidence— Taking  Ad- 

vantage of  the  Defendant's 
Cross-Examination. 

95.  The  Evidence  —  How  to 

Break  Down  a  False  Alibi. 

96.  Closing  Address  —  Temper- 

ate Keply  versus  "Earnest 
Appeal." 


§  81.  Order  of  a  Criminal  Trial.  —  The  first  thing" 
in  a  criminal  trial  is  the  arraignment  of  the  accused. 
To  arraign  the  accused  in  criminal  practice  is  to  bring 
the  prisoner  to  the  bar  of  the  court  to  answer  the 
matter  charged  upon  him  in  the  indictment.  The 
procedure  consists  in  calling  upon  the  prisoner  by 
name  and  stating  the  charge  against  him,  or, 
if  he  demands  it,  reading  to  him  the  indictment 
and  demanding  of    him    whether   he  be    guilty    or 


CONDUCT  OF  A   CRIMINAL  PROSECUTION.  89 

not  guilty,  and  entering  his  plea.^  To  the 
arraignment  accused  may  either  plead  guiltj^ 
or  not  guilty  or  "stand  mute."  If  the  accused 
refuses  to  plead,  the  court  instructs  a  plea  of  not 
guilty  and  the  trial  proceeds  as  if  the  accused  had 
so  pleaded. 

After  arraignment  accused  has  opportunity  to 
interpose  certain  motions  more  or  less  vexatious  in 
their  nature  as  a  general  rule.  He  may  seek  a 
discharge  on  motion  on  such  grounds  as  former 
jeopardy,  denial  of  a  speedy  trial  to  his  prejudice, 
and  for  prosecution  on  information  without  good 
cause  shown  where  grand  jury  failed  to  indict.  He 
may  enter  a  demurrer  to  the  indictment  or  he  may 
move  to  quash  the  indictment  on  many  and  various 
grounds.  He  may  ask  for  change  of  venue  or 
removal  of  cause.  If  the  charge  against  the  accused 
is  indefinite  he  may  demand  a  bill  of  particulars. 
He  may  demand  also  a  list  of  the  witnesses  testify- 
ing against  him.  He  then  enters  his  formal  plea 
to  the  indictment.  After  that  he  may  ask  for  a 
postponement  or  continuance  of  the  trial  on  certain 
grounds. 

The  selection  of  the  jury  is  the  next  important 
stage  in  the  proceedings.  Before  this  is  done,  how- 
ever, the  prosecuting  officer  has  the  right  to  enter  a 
nolle  prosequi.'^  '  Before,  also,  the  actual  selection  of 

1  The  arraignment  of  the  accused  must  bo  the  first  step  In  the  pro- 
gress of  the  trial:  it  must  precede  the  impaneling  of  the  jury  and  the 
hearing  of  the  evidence;  and  failure  to  so  arraign  the  defendant  is 
reversible  error,  which  is  not  cured  by  arraignment  after  the  trial  has 
begun.    Abbott's  Criminal  Trial  Brief,  p.  25,  and  cases  cited. 

2  After  the  jury  is  sworn  the  defendant  acquires  the  right  to  have 
the  cause  disposed  of  by  its  verdict;  and  if,  without  cause  or  the 
defendant's  consent,  a  nolle  prosequi  is  entered  and  the  jury  discharged, 
this  amounts  to  an  acquittal,  which  the  defendant  may  set  up  as  a 
defense  to  a  subsequent  prosecution  for  the  same  offense.  Abbott's 
Criminal  Trial  Brief,  p.  197,  and  cases  cited. 


90  AMERICAN    ADVOCACY. 

the  jury  accused  may  interpose  a  demand  for  a  copy 
of  the  panel;  he  may  enter,  on  various  grounds,  a 
challenge  to  the  array  or  entire  panel.  After  these 
interruptions,  if  entered,  have  been  overcome,  the 
parties  must  at  once  proceed  to  the  task  of  selecting 
a  trial  jury. 

Following  the  selection  and  "swearing  in"  of  the 
jury  come  the  opening  statements  of  the  prosecu- 
tion and  the  defense,  about  which  we  shall  have  more 
to  say  in  subsequent  sections.  Then  follow  in  a  reg- 
ular, and,  as  a  general  rule,  uninterrupted  order  the 
introduction  of  evidence,  the  closing  addresses — 
the  summing  up  and  reply — of  counsel,  and  the 
charge,  instructions  or  summing  up  of  the  court  to 
the  jury,  after  which  the  fate  of  the  defendant  is  in 
the  hands  of  the  "twelve  good  men  and  true." 

§  82.  Prosecution  Nt)t  Persecution. — Above  every- 
thing, it  is  important  that  the  prosecutor  should 
exhibit  no  feeling  in  the  conduct  of  a  prosecution. 
He  is  not  the  offended  party  nor  the  minister  of  jus- 
tice, as  he  is  sometimes  erroneously  called.  He  is 
the  presenter  of  the  accused  at  the  bar  of  justice,  and 
is  the  last  person  who  should  exhibit  emotion.  There 
should  appeal r  no  anxiety  on  the  part  of  the  counsel 
to  obtain  a  conviction.  Whoever  the  accused  may  be, 
and  whoever  the  accuser,  and  whatsoever  the  nature 
of  the  charge,  there  should  appear  but  one  unswerv- 
ing desire  on  the  part  of  the  advocate,  namely,  to 
lay  the  facts  of  the  case  before  the  tribunal  which  is 
to  judge  of  them.  Inflexible  justice  is  required  on 
the  part  of  him  who  sometimes  calls  himself  its 
minister.  Neither  the  shocking  nature  of  the  crime, 
nor  the  heinous  character  of  the  accused,  nor  the 
exalted  rank  of  the  accuser,  nor  any  other  circum- 
stance, should  disturb  the  mind  or  temper  of  the 
advocate. 


CONDUCT   OF   A   CRIMINAL  PROSECUTION.  91 

But  it  is  not  in  prosecutions  for  crimes  of  the 
deeper  guilt  that  the  danger  of  excited  feelings  has 
to  be  guarded  against.  In  these  there  is  generally 
too  much  of  the  sepulchral  tone  and  manner,  as  though 
the  wretched  criminal  were  delivering  his  last  dying 
speech  and  confession  by  proxy.  It  is  in  cases  such 
as  libel,  where  the  circumstances  may  be  particularly 
aggravated  and  the  accuser  a  person  of  distinguished 
position  in  society;  or  it  may  be  in  some  other  misde- 
meanor of  the  social  sort,  where  mortal  vindictive- 
ness,  rather  than  divine  justice,  seems  occasionally 
to  be  the  inspirer  if  not  the  director  of  the  pro- 
ceedings. 

But  whatever  may  be  the  nature  of  the  charge  or 
the  quality  of  accused  or  accuser,  let  there  he  no  feeling 
— at  least,  no  manifestation  of  it.  Nothing  can  be 
worse,  either  as  a  matter  of  abstract  justice,  or  as  a 
matter  of  mere  advocacy.  A  man  who  throws  feeling 
into  a  prosecution,  awakens  an  opposite  sentiment  in 
favor  of  the  accused.  The  sense  of  fair  play,  which 
every  American  is  credited  with  possessing,  is  out- 
raged by  an  attempt  to  convict  a  man  by  declamation 
and  angry  eocpression.  Is  he  guilty?  That  is  the  ques- 
tion. The  prosecutor  is  not  .to  denounce  the  crime; 
that  has  no  doubt  been  committed  by  some  one,  and 
is  none  the  deeper  or  the  wickeder,  denounce  it  as  he 
will;  he  is  not  to  denounce  the  man;  the  latter  may 
not  be  guilty ;  and  if  not,  shall  the  innocent  be  de- 
nounced? He  may  be  guilty;  what,  then,  is  the  pros- 
ecutor his  judge  or — his  executioner?  So  that  he 
will  be  none  the  worse,  and  none  the  better,  the 
crime  no  deeper,  and  the  charge  no  nearer  proof,  by 
declamation  or  anger.  Accused  persons  have  been 
known  to  be  acquitted  through  a  too  intense  desire  to 
convict;  especially  in  cases  where  self -constituted 
bodies  of  men  support  the  public  morality  by  public 
subscriptions. 


92  AMERICAN   ADVOCACY. 

§  83.    Opening  Statement  —  Avoiding   Argument.  — 

Another  error  to  avoid  is  argument  at  the  open- 
ing of  the  case  for  the  prosecution.^  At  this 
stage  there  is  nothing  to  argue  (unless  the  prose- 
cutor wants  to  argue  that  he  is  telling  the  truth), 
and  its  principal  effect  will  be  to  throw  doubt  on 
his  case.  Facts  that  require  nursing  the  moment 
they  are  presented  must  be  weak  indeed;  and  the 
prosecutor  may  depend  upon  it,  such  swaddling 
clothes  will  never  keep  life  in  them.  What  can  be 
stronger  or  healthier  than  a  plain  statement  of  a 
simple  fact?  Aye,  but  if  it  be  not  a  simple  fact,  but 
a  series  of  compound  facts,  what  then?  It  is  a  mere 
matter  of  arithmetic.  Reduce  the  compounds  to 
simples;  and  for  such  analysis  there  is  no  need  for 
argument.  The  best  opening  of  a  case  for  the  pros- 
ecution is  a  clear  and  concise  statement  of  facts, 
without  embellishment,  without  argument,  and  with- 
out feeling.  It  may  be  necessary  to  explain  matters, 
or  to  separate  them,  or  to  connect  them,  or  to  treat 
them  in  some  other  manner  by  way  of  elucidation; 
but  it  is  never  necessary,  and  is  therefore  bad  advo- 
cacy, to  color  them,  or  in  any  way  to  alter  their 
appearance,  or  apply  to  them  a  far-fetched  and  pos- 
sibly foreign  meaning.  Moreover,  such  a  practice 
very  often  furnishes  ground  for  a  reversal,  if  the 
accused  is  convicted.^ 

1  Opening  statements  should  consist  of  a  presentation  of  the  facts 
intended  to  be  given  in  evidence  by  the  respective  parties,  to  the 
exclusion  of  argument  and  irrelevant  and  prejudicial  matters.  Hoch- 
heimer  on  Crimes  and  Criminal  Procedure  (1897),  §  241. 

2  Thus  it  was  held  in  a  certain  case  that  an  opening  address  in  a  crim- 
inal case,  made  by  the  district  attorney  against  objection,  containing 
not  only  a  statement  of  the  evidence  which  it  was  expected  would  be 
introduced,  but  also  a  full  and  exhaustive  argument  of  the  case,  much 
of  which  was  based  upon  a  state  of  facts  which  did  not  appear  in  the 
evidence,  furnished  ground  for  reversal  of  a  judgment  of  conviction. 
State  V.  Williams,  63  Iowa,  140,  18  N.  W.  Rep.  682. 


CONDUCT  OF  A  CRIMINAL   PROSECUTION.  93 

§  84.  Opening  Statement — Avoiding  Exaggeration. — 

— Again,  all  exaggeration  is  to  be  avoided;  the  prose- 
cutor should  neither  jnagnify  that  which  he  can  prove, 
nor  open  a  single  fact  that  he  cannot.  It  is  not  onl}?" 
bad  as  a  matter  of  advocacy,  but  dishonest  as  a  mat- 
ter of  morality.  As  the  jury  approaches  the  evidence 
of  the  case  by  way  of  examination,  the  facts  should 
expand  upon  the  view  rather  than  diminish ;  as  dimin- 
ish they  must  if  the  prosecutor  exaggerate  them  in 
his  opening.  No  art  should  be  emploj^ed  for  the  mere 
purpose  of  convicting  a  prisoner,  but  there  should  be 
no  abandonment  of  it  because  a  crime  happens  to  be 
the  subject  of  the  prosecutor's  advocacy.  It  is  his 
duty  to  convince  the  jury  of  the  guilt  of  the  accused 
if  he  can  do  so  fairly.  To  accomplish  this  he  must 
present  the  facts  in  their  natural  order  (which  is  art), 
and  in  the  most  comprehensive  manner  (which  is  art), 
and  in  the  most  simple  manner  (which  also  is  art). 
But  before  all  things,  before  even  the  conviction  of 
the  guilty,  it  should  be  the  prosecutor's  care  to 
refrain  from  stating  the  smallest  matter  which  in  his 
conscience  he  does  not  believe  to  be  capable  of  proof. 
If,  inadvertently,  this  be  done,  as  indeed  it  must 
sometimes  from  erroneous  instructions,  he  should 
spare  no  pains  to  disabuse  the  minds  of  the  jury  of 
the  impression  which  such  a  statement  may  have 
made.  He  never  can  tell  what  effect  a  word  may 
have;  a  verdict  may  be  influenced  b}^  the  most  trifling 
observation.  For  this  reason  he  should  instantly 
repair  any  mistake  which  may  operate  against  the 
accused. 

§  85.  Opening  Statement — Conventional  and  Undigni- 
fied Phrases. — Another  error,  verj^  frequently  com- 
mitted, should  by  all  means  be  avoided, — thatof  telling 
a  jury  that  the  advocate  thinks  he  shall  be  able  to  prove 
so-and-so;  or  he  thinks  he  shall  be  able  to  show 


94    '  AMERICAN  ADVOCACY. 

so-and-so.  This  is  unfair  to  the  prisoner,  if  he  fails, 
and  is  extremely  weak,  if  he  succeed.  What  he 
knows  he  can  prove,  open;  what  he  is  doubtful  about, 
leave  for  the  evidence.  Need  it  be  said  that  expres- 
sions such  as  "How  on  earth  could  the  prisoner  have 
known  so-and-so?"  and,  "How  on  earth  could  he  have 
thought  so-and-so?"  should  be  avoided,  and  that 
language,  such  as  "It  is  a  lie!  gentlemen,"  is  not 
graceful  or  dignified?  Nor  should  the  counsel  for 
the  prosecution  assume  to  himself  the  office  of 
defending  the  prosecutor  or  prosecutrix,  as  the  case 
may  be.  He  may  do  so  in  the  most  efficient  manner, 
if  he  be  a  skillful  advocate;  but  that  must  not  appear 
to  be  the  main  object  of  the  prosecution.  If  CcBsar's 
wife  be  above  suspicion,  she  will  need  no  defender: 
and  it  will  be  no  compliment  to  say  that  the  advocate 
is  there  for  the  purpose  of  vindicating  her  character. 

§  ^6.  Opening  Statement — Stating  Personal  Belief  as 
to  Gfuilt  of  Accused. — The  next  thing  for  the  prose- 
cutor to  remember  is,  never  to  say  the  prisoner 
is  guilty.  It  is  an  utterly  useless  expression,  and 
seems  to  imply  that  the  prosecutor  has  a  feeling  in 
the  matter,  even  when  he  may  have  none.  He  has  to 
lay  the  facts  before  the  jury  from  which  no  other 
inference  than  that  of  guilt  can  reasonably  arise. 
Guilty  is  the  sum  total  of  inferences  and  probabilities 
arising  from  the  facts,  and  is  to  be  pronounced  only 
by  those  who  are  sworn  to  try  whether  he  be  guilty 
or  not  guilty. 

§  87.  Opening  Statement  —  Interpreting  the  Indict- 
ment to  the  Jury. — The  charge  against  the  prisoner 
should  be  stated  clearly  and  concisely.  It  is  not 
always  stated  clearly  and  concisely.  The  judge,  gen- 
erally, has  to  tell  the  jury,  after  all  the  speeches  and 
all  the  evidence,  what  the  charge  is  and  what  is  the 


CONDUCT   OF   A   CRIMINAL   PROSECUTION.  95 

nature  of  the  charge.  It  is  remarkable  that  young 
advocates,  as  a  rule,  both  in  prosecuting  and  de- 
fending, leave  out  the  offense  stated  in  the  indict- 
ment. Now,  there  are  many  wa3^s  of  stating  a 
charge,  but  there  is  only  one  way  to  inform  the 
minds  of  the  jury  of  the  offense  which  the  accused 
is  alleged  to  have  committed.  And  the  first  thing 
necessary  is  to  strip  it  of  the  legal  jargon  in 
which  it  is  enfolded.^  The  advocate  is  the  inter- 
preter of  this  unknown  thing  to  the  people  or 
"the  country."  Inwrapped  as  the  simple  matter  is 
in  the  manifold  incumbrances  and  technicalities  of 
the  law,  how  is  a  mortal  common  sense  jury  to  know 
whether  the  enfolded  thing  before  them  be  a  wolf  or 
one's  grandmother?  Unless  they  understand  the 
nature  of  the  charge  they  will  never  appreciate  tlior- 
oughl3^  the  finer  points  of  the  evidence,  which  may 
be  so  important  to  lead  them  to  a  just  conclusion. 
The  advocate  must  leaiii^  therefore,  to  put  the  mean- 
ing of  indictments  into  every-day  language,  and  then 
he  will  reduce  it  to  simplicity  in  a  few  words. 

§  88.  Opening  Statement — Only  Facts  Bearing  Directly" 
on  the  Issue  to  be  Stated. — Now  come  the  facts ;  but  be  it 
remembered  that  nothing  is  to  be  stated,  remote  or 
near,  that  has  not  a  direct  hearing  upon  the  issue.  Every- 
thing that  may  prejudice  the  jury — as  the  advocate 
loves  an  easy,  conscience  and  values  his  own  character 
for  honesty — must  be  carefully  excluded;  and  above 
all  things  he  should  avoid  doing  in  an  oblique  manner 


'  Since  the  days  of  Babel  there  has  been  no  mortal  language  less 
understood  of  the  people  than  the  lawyers'  dialect;  no  man,  iiowever  deep 
in  linguistics,  will  ever  be  deep  enough  to  get  to  the  bottom  of  that 
unfathomable  vortex.  If  a  person  desires  to  enjoy  a  piece  of  real  humor, 
watch  a  jury  while  they  listen  to  a  prisoner  being  "given  in  charge"  on 
some  ski  Ifully  worded  indictment,  with  complications  enpugh  to  baffle 
the  father  of  all  worldly  complications  himself. 


96  AMERICAN  ADVOCACY. 

that  which  it  would  be  unfair  to  do  directly.  Nor  is 
this  warningunnecessar3\  Many  have  erred  inadvert 
ently  in  their  zeal  for  the  "administration  of  justice," 
who,  in  a  matter  of  private  and  social  concern,  would 
guard  themselves  from  the  faintest  appearance  of 
unfairness.  The  prosecutor  is  not  to  be  what  is 
known  in  some  proceedings  as  a  "devil's  advocate," 
employed  when  they  desire  to  "canonize"  a  lady  or 
gentleman.  He  is  not  required  to  canonize  the 
prisoner,  but  to  do  him  as  much  justice  as  if  he  had 
some  sorrow  for  his  situation. 

The  rule,  simply  stated,  is  that  the  prosecuting 
attorney  has  a  right  to  state  in  his  opening  onl}^  those 
facts  which  the  prosecution  intends  to  prove,  but  not 
those  of  which  he  cannot  offer  competent  evidence.^ 

§  89.  Opening  Statement — Anticipating  the  Defense. — 
In  proceeding  with  his  statement  there  is  often  a 
danger  of  the  advocate  being  led  into  an  anticipation 
of  the  defense  that  will  be  set  up  either  to  the  whole 
or  to  any  portion  of  it.  This  ought  never  in  a  prose- 
cution to  be  yielded  to,  if  for  no  other  reason,  at  least 
for  the  very  obvious  one  that,  if  the  prisoner  be 
defended,  the  prosecution  has  the  right  of  replying. 
Such  expressions  as,  "It  may  be  said  by  my  learned 
friend,"  etc.,  are  not  legitimately  a  part  of  an  open- 
ing statement.     But  it  is  by  no  means  improper  in 


1  The  counsel  for  the  accused  has  a  right  to  interpose  and  object  to 
any  impropriety  of  the  prosecuting  counsel  in  the  opening,  and,  if  the 
court  allow  him  to  proceed  therein,  to  take  an  exception  to  the  ruling, 
and  to  request  an  instruction  to  the  jury  to  correct  the  effect  of  such  im- 
propriety. Abbott's  Criminal  Trial  Brief,  p.  291,  and  cases  cited.  "But 
the  purpose  of  the  opening  address,"'  says  Mr.  Abbott,  "is  to  inform 
the  jury  as  to  the  nature  of  the  case  in  hand,  and  while  deliberate  mis- 
statement of  fact  calculated  to  prejudice  the  accused,  and  not  corrected 
by  the  court,  would  be  ground  for  reversal,  the  rule  is  different  where 
facts  are  honestly  stated  with  the  expectation  of  proving  them,  which, 
through  some  unforeseen  circumstances,  counsel  fails  to  do."' 


CONDUCT   OF  A   CRIMINAL   PROSECUTION.  97 

favor  of  the  accused  to  present  that  view  of  the  fact 
which  the  advocate  finds  himself  obliged  to  deal  with 
and  dispose  of.  The  moment  he  shows  himself  eager 
to  convict,  the  jury  will  suspect  him,  or  the  prose 
cutor,  of  vindictive  feeling,  one  of  the  worst  symp- 
toms to  manifest  either  at  the  bar  or  in  the  witness- 
box. 

§  90.  The  Evidence — Order  and  Arrangement.  — 
''''Order  and  arrangement — these  must  be  observed  if 
the  advocate  wish  the  jury  thoroughl}^  to  understand 
the  statement  he  has  to  make.  As  the  advocate 
opens  his  case,  so  should  the  witnesses  be  called  to 
prove  it;  the  continuity  of  circumstances  must  not 
be  broken,  although  there  may  be  divers  branches  of 
the  subject;  there  may  be  many  chapters,  but  they 
were  enacted  in  order  in  the  real  history  he  is 
unfolding.  The  advocate  will  sometimes  find  that 
the  depositions  are  confused  and  complicated. 
Before  the  magistrates,  where  evidence  is  taken  in 
portions,  as  it  is  obtained,  and  in  the  course  of  many 
adjournments  or  remands,  it  is  next  to  impossible  to 
follow  any  rule  in  this  respect.  But  it  will  be  the 
advocate's  duty  to  separate  and  arrange  the  various 
portions  of  evidence  before  presenting  them  to  the 
jury. 

§  91.  The  Evidence— Overlaying  the  Case  With  Too 
Much  Evidence.  —  "Overlaying  the  case,"  as  it  is 
called,  is  a  dangerous  proceeding.  It  is  like  tak- 
ing a  feather  bed,  bolster  and  two  pillows  to  smother 
a  mouse  with,  when  the  feather  bed  would  be  amply 
sufficient  if  well  applied.  A  number  of  witnesses- 
cannot  agree  on  all  points.  We  do  not  mean  in  words, 
because  that  would  at  once  damn  their  evidence,  but 
as  to  facts  themselves,  and  if  the  advocate  call  a 
number  of  witnesses,  the  chances  are  that  he  will 
call  a  number  of  contradictions,  and  the  moment_h& 
7 


98  AMERICAN  ADVOCACY. 

gets  one  witness  to  contradict  another  upon  any  point 
how  little  material  soever,  if  it  be  material,  the  jury, 
as  a  rule,  will  determine  that  portion  of  the  evidence 
in  favor  of  the  accused,  unless  other  circumstances 
lead  them  to  a  different  conclusion.  The  advocate 
will  have  given  him  already  the  benefit  of  one 
doubt.  Then,  again,  among  the  multitude  may  creep 
in  some  one  or  two  of  a  disreputable  kind;  the  advo- 
cate may  not  know  them,  but  his  "learned  friend," 
if  he  have  any  skill,  will  soon  introduce  them  to  him; 
and  if  their  character  or  evidence  be  "shaky,"  as  it 
is  called  forensically,  it  will  lower  the  average  of  the 
whole;  at  all  events  the  merits  of  his  case  will  sink 
with  it.  It  requires  a  number  of  respectable  wit- 
nesses to  buoy  up  a  case  laden  with  one  whose  char- 
acter renders  him  unworthy  of  belief.^ 


1  We  may  here  mention  one  very  important  English  case  in  which 
the  Crown  was  cruelly  hoodwinked.  It  was  a  case  of  murder.  A  very 
bad  case.  Horribly  brutal.  The  public  were  shocked  and  intensely 
interested  throughout  the  length  and  breadth  of  the  land.  It  was  a 
murder  that  ranks  among  the  great  murders  of  the  world.  In  conse- 
quence whereof  there  was  more  bungling  among  the  police  and  more 
conflict  among  police  authorities  than  usual.  Borough  police  and 
Scotland  Yard  almost  taking  one  another  up  if  not  knocking  one 
another  down.  AH  this  is  a  thing  of  yesterday  to  one's  recollection. 
When  the  police  had  laid  hold  of  the  supposed  murderer  what  scenes 
•were  enacted  at  the  police  court  day  by  day,  and  how  the  conflicting 
"authorities,"  with  ofiicial  and  non-official  jealousy,  proceeded  on  the 
uneven  tenor  of  their  way  as  well  as  other  people's  way !  For  it  was  a 
great  and  notable  murder. 

But  what  is  more  to  our  point  is  not  the  notoriety  or  jealousy,  or  the 
degrees  of  activity  or  non-activity  of  intelligent  or  non-intelligent  ofli- 
cers,  but  the  Crown  Institution  itself,  and  its  staff  for  taking  down  the 
"proofs."  The  "proofs"  came  thick  and  fast  one  may  be  sure;  almost 
everybody  had  a  "proof."  The  whole  country  seemed  to  have  been 
called  from  its  avocations  to  see  the  murder  done.  The  prisoner  was 
seen  here  and  seen  there ;  he  was  buying  in  this  shop  and  visiting  in 
that;  he  was  singing  in  one  place  and  dancing  in  another;  courting  in 
one  lonely  spot  and  murdering  in  another.  There  never  were  so  many 
*'clew8"  to  a  single  crime.   At  last  the  perpetrator  of  one  horrible  mur- 


CONDUCT   OF  A   CRIMINAL  PROSECUTION.  99 

§  92  The  Evidence— Police  Testimony  Not  to  be 
Implicitly  Relied  Upon.— Another  matter  to  be  on 
one's  guard  against,  is  being  overdone  by  police 
testimony.  Verj^  few  policemen  are  really  un- 
truthful; and  very  few  would  unnecessarily  "pile 
on  the  evidence"  against  a  man;  but  all  are  zeal- 
ous, and  zeal  is  a  force,  as  we  all  know,  that  will  some- 
times impel  us  beyond  the  boundary  line  of  discretion. 
They  require  to  be  kept  in  with  a  steady  and  firm 
hand,  for  much  zeal  on  their  part,  like  too  much 
anxiety  on  the  part  of  the  prosecutor,  is  sure  to  oper- 
ate against  what  the  prosecution  invariably  calls  "the 
interest  of  public  justice." 

der,  at  all  events,  to  the  satisfaction  of  one  section  of  tlie  police,  would 
be  brought  to  justice.  It  would  make  up  for  many  undiscovered  and 
thrilling  crimes.  Let  no  one  henceforth  say  the  police  cannot  "find  out 
anything."  Into  the  office  where  they  take  the  evidence,  or  "proofs," 
there  stepped  witness  after  witness — scores  of  witnesses.  Evidence  was 
taken  down,  sifted,  weighed,  measured,  as  it  might  have  been,  by  the 
yard;  and  there  stoppedin  among  the  crowd  one  or  two  of  the  simplest- 
looking,  "innocentest"  looking  young  men  that  could  be  found  in 
all  London,  and  an  innocent-looking  woman  or  two.  Now, 
the  Crown,  being  incapable  of  doing  any  wrong,  is  equally  inca- 
pable of  thinking  any  evil;  so  it  thought  none  of  these  interesting 
witnesses  who  gave  their  story  with  solemn  faces,  and  went  away  with 
proper  subpoenas  in  their  pockets. 

The  trial  came  on,  as,  after  so  much  elaborate  preparation,  it  was 
only  proper  that  it  should;  and  the  evidence  looked  uncommonly  black 
against  the  unhappy  prisoner.  An  anxious  and  highly  sensational 
public  watched  for  justice  to  be  avenged.  But  it  was  curious  that 
amid  the  Crown  witnesses,  interspersed,  were  witnesses  who  made 
some  matters  deposed  to  impossible,  who  undid  fastenings  and  knocked 
the  heads  off  several  of  the  Government  rivets;  in  fact,  who  seemed 
altogether  to  upset  the  elaboratelv  constructed  evidence  of  the  prose- 
cution. The  prosecution  became  confused,  looked  at  the  notes  taken 
down  at  the  institution,  compared  them  with  the  evidence  In  court 
to-day,  questioned  the  witnesses— no  use,  there  were  contradictions, 
irreconcilable  disagreements,  all  in  favor  of  the  prisoner.  Dates 
were  wrong;  prisoner  was  in  two  or  three  places  at  once.  And  so  it 
went  on,  until  the  judge  summed  up.  The  judge  did  not  reconcile  the 
discrepancies — could  not,  in  fact:  jury  never  attempted  to.  So  the  man 
was  acquitted.    Evidence  not  sufficient  because  too  much. 


100  AMERICAN  ADVOCACY. 

§  93.  The  Evidence — Concentrating  Attack  on  Main 
Defenses  of  Accused.  —  There  are  two  answers- 
only  to  a  charge — one  in  law,  the  other  in  fact. 
These  resolve  themselves  in  practice  to  three:  1. 
The  prisoner  is  not  the  man  (mistaken  identity); 
2.  No  intention  to  commit  the  act.  3.  The  act  was 
never  committed.  We  are  speaking  now  of  the  nature 
of  crimes  and  misdemeanors  generally  with  which 
advocates  have  to  deal  in  the  police  courts;  but  we 
are  not  certain  that  we  should  not  be  perfectly  accu- 
rate if  we  applied  the  statement  to  the  whole  of  the 
offenses  in  the  statute  book  and  at  common  law.  It 
is  under  one  or  other  of  these  heads  that  the  various 
"defenses"  will  range  themselves:  insanity,  no 
proof  of  property,  no  guilty  knowledge,  consent,, 
and  so  on.  This  being  the  case,  the  first  step  in 
arranging  and  pointing  the  evidence  is  to  ascertain 
what  c^  be  disputed  and  what  is  incapable  of  denial. 
A  prisoner  perhaps  cannot  deny  that  he  did  a  certain 
act.  He  is  either  justified  then  in  law,  or  excused  on 
the  ground  of  insanity,  or  affirms  that  he  had  no 
guilty  knowledge  or  intent,  or  that  there  was  consent 
to  what  was  done.  It  will  be  easily  perceived  where 
the  points  of  the  prosecution,  will  require  to  be  made 
good.  If  the  prosecution  expend  the  force  of  its  evi- 
dence to  prove  identity  when  the  main  defense  is  no 
guilty  knowledge,  or  intent  to  defraud,  a  rogue  may 
escape  from  justice  for  want  of  mere  forensic  skill  on 
its  part,  as  he  may  from  a  policeman  for  want  cf 
handcuffs.^ 

1  A  man  was  once  tried  for  embezzling  money,  the  price  of  hay 
which  he  had  taken  from  a  rick  belonging  to  his  employer  and  sold. 
There  was  no  proof  that  he  had  ever  had  the  money,  and  if  he  had 
there  was  no  proof  that  he  had  received  it  for  and  on  account  of  his 
master.  It  was  contended  that  if  it  was  anything  it  was  stealing  the 
hay.  So  he  was  acquitted  and  charged  with  stealing  the  hay.  Argued 
that  if  it  was  anything  it  was  embezzling  the  money,  for  he  had 
authority  to  sell  the  hay.    Acquitted.    Not  because  he  was  not  guilty.. 


CONDUCT   OF  A  CRIMINAL   PROSECUTION.         101 

§94.  The  Evidence — Taking  Advantage  of  the  De- 
fendant's Cross-Examination.  —  It  is  not  necessary 
to  repeat  what  has  been  said  in  a  former  part  of  this 
work  with  reference  to  the  cross-examination  for  the 
prisoner.  The  advocate  may  be  sure  that  a  copious 
shower  of  questions  from  his  opponent  will  rain  down 
some  fact  or  other  which  will  assist  the  prosecution. 
He  must  be  a  skillful  advocate,  indeed,  who  in  a  long 
cross-examination  elicits  no  facts  against  himself,  or 
lets  in  no  evidence  which  will  add  a  burden  to  his 
defense.  The  prosecuting  oflBcer  will,  therefore, 
watch  every  question,  and  note  the  answer  if  it 
requires  to  be  re-examined  upon  or  commented  upon 
in  the  summing-up  or  reply.  Men  have  been  con- 
victed through  being  defended  by  injudicious  advo- 
cates, and  many  a  rogue  has  escaped  through  the 
incapacity  of  the  advocate  for  the  prosecution.  The 
greatest  lawyer  that  ever  lived  might  be  no  advocate, 
and  without  a  large  experience  of  mankind  no  man 
can  be  a  good  one.  But  the  young  advocate  must  get 
experience  somewhere ;  somebody  must  be  the  patient 
for  him  to  practice  upon  for  the  benefit  of  the  healthy 
body  corporate.  He  should,  however,  learn  as  far  as 
possible  by  the  blunders  of  others  rather  than  his 
own,  and  will  have  a  fair  opportunity  of  doing  so 
while  engaged  in  a  prosecution  by  carefully  watching 
and  noting  where  a  question  is  clumsy  merely,  and 
where  it  is  wrong;  by  considering  how  questions 
should  be  asked,  and,  more  important  still,  how  they 
should  he  framed^  so  as  to  bring  no  harm  to  his  case 
and  as  much  good  as  possible.  Law,  only,  will  not 
make  an  advocate  any  more  than  a  balance-pole  will 
'  enable  one  to  walk  a  tight-rope. 

§  95.  The  Evidence — How  to  Break  Down  a  False  Alibi. 
— We  come  now  to  a  subject  which  has  always  been  con- 
sidered^ in  criminal  cases  especially,  one  of  the  most 


102  AMERICAN  ADVOCACY. 

difficult  tasks  that  presents  itself  to  the  prosecutor.  It 
is  that  which  is  known  under  the  title  of  2.  false  alibi; 
that  is,  where  an  alibi  is  set  up,  and  every  fact  is 
true  except  the  date.  It  has  been*  said  that  an  alibi 
of  this  kind  cannot  be  broken  down.  That  is  an 
erroneous  idea;  and  although  it  is  a  difficult  task,  in 
the  majority  of  cases,  it  can  be  accomplished.  A  false 
alibi  Tudbj  be  described  in  this  way:  A  has  committed 
a  burglary,  say  between  the  hours  of  eleven  and 
twelve  on  a  particular  night.  B,  C  and  D  are  resolved 
to  secure  his  acquittal,  and  undertake  to  prove  that, 
at  the  time  mentioned,  the  prisoner  was  in  their  com- 
pany ten  miles  away  from  the  scene  of  the  crime.  If 
this  be  proved,  and  the  witnesses  withstand  the 
cross-examination,  they  will  succeed.  They  know  that 
they  will  be  cross-examined  apart  as  to  the  main 
events  of  their  meeting  as  well  as  the  minor  circum- 
stances—the time  they  started,  the  road  they  took, 
where  they  stopped,  what  refreshments  they  had, 
how  they  were  employed,  and  even  the  relative  posi- 
tion each  individual  occupied  with  regard  to  his  com- 
panions. If  the  meeting  were  altogether  imaginary, 
nothing  would  be  more  easy  than  to  demolish  the 
whole  story.  But  if  A,  B,  C  and  D  went  on  some 
other  day  for  the  purpose  of  subsequently  describing 
their  proceedings,  each  would  be  able  to  stand  against 
the  most  subtle  cross-examination  that  could  be 
administered,  as  to  the  circumstances  of  their  meet- 
ing. All  would  be  true,  and  the  more  they  were  cross- 
examined  the  more  clearly  the  truth  would  appear. 
The  only  thing  they  would  have  to  make  up  their 
minds  upon  and  remember  would  be  that  it  occurred 
upon  the  night  of  the  burglary.  This  was  doubtless 
an  ingenious  device,  and  must  have  succeeded  for  a 
considerable  time.  It  must  have  been  exposed,  how- 
ever, on  the  first  occasion,  when  it  was  discovered 


CONDUCT  OF  A   CRIMINAL  PROSECUTION.        103 

that  the  events  were  all  true,  and  yet  the  prisoner 
was  guilty.  It  could  be  capable  of  one  explanation 
only.  Now  comes  the  question:  "How  is  such  an 
alibi  to  be  broken  down?"  The  time-worn  questions, 
such  as:  "Where  were  you  the  day  before?  The  day 
after?"  and  so  on,  are  obviously  too  weak  as  well 
as  too  clumsy  to  succeed.  It  cannot  be  doubted  that 
there  must  be  a  way  to  break  down  such  an  alibi^  but 
up  to  the  present  time  no  one  seems  to  have  formed 
any  scientific  mode  of  proceeding. 

In  the  first  place,  it  must  be  ascertained  whether 
the  alibi  be  true  or  false  (a  very  different  thing  from 
proving  it  to  be  one  or  the  other),  and  this  will  be 
easily  accomplished  by  a  skillful  advocate  in  three  or 
four  questions;  for,  as  spurious  metal  answers  to  the 
test,  so  a  fictitious  story  will  discover  its  nature  to  a 
good  cross-examiner.  Having  satisfied  himself  on 
this  point,  the  next  question  and  the  only  one  will  be 
how  to  break  down  the  witness  as  to  date.  As  all  the 
incidents  deposed  to  actually  occurred,  cross-exami- 
nation as  to  them  will  be  not  only  a  waste  of  time,  but 
will  tend,  as  before  observed,  to  prove  their  truth. 
The  cross-examiner  must,  consequently,  proceed  to 
the  incidents  which  are  outside  the  witness'  story. ^ 


1  If  we  take  an  absolutely  obvious  example  by  way  of  illustration,  it 
will  probably  be  more  useful  than  any  attempt  to  define  a  theory  by 
reasoning.  Suppose,  then,  a  burglary  to  have  been  committed  on  the 
Thursday  immediately  preceding  Good  Friday,  in  a  country  village,  and 
that  the  meeting  for  the  purpose  of  concocting  the  alibi  took  place  on 
Good  Friday.  The  witnesses  will  have  come  prepared  to  speak  of  the 
incidents  of  that  meeting.  They  will  surmise  that,  in  all  probability, 
they  will  be  asked,  because  it  is  a  common  and,  as  it  seems  to  us,  a 
clumsy  question,  "Where  were  you  the  day  before?"  and,  "When  were 
you  with  the  prisoner  before  that?"  These  questions  and  many  others 
of  a  similar  kind  are  as  familiar  to  the  class  of  persons  now  referred  to 
as  they  are  to  the  counsel  asking  them.  They  are  obvious,  every-day, 
stereotyped  questions,  and  the  witnesses  come  prepared  to  answer  them 
accordingly.    But  suppose  the  cross-examiner  take  the  witness  entirely 


104  AMERIOAN  ADVOCACY. 

§  96.  Closing  Address  —  Temperate  Reply  rersus 
"Earnest  Appeal." — We  should  not  think  it  necessary 
to  say  a  word  as  to  the  reply  in  a  criminal  case,  but 
that  advocates  have  sometimes  been  so  vehement  both 
in  denunciation  and  "earnest  appeals,"  that  one  al- 
most forgets  that  an  unhappy  wretch  in  custody  was 
the  occasion  of  it.  Calm  and  temperate,  at  all  times, 
should  be  the  voice  that  asks  for  the  condemnation  of 
a  fellow-creature.  Every  allowance  should  be  made 
for  the  common  infirmities  that  beset  us;  every  por- 
tion of  the  case  not  absolutely  covered  by  the  prose- 


out  of  the  circumstances,  and  ask  something  which  he  does  not  antici- 
pate. In  the  first  place,  he  will  be  afraid  to  answer,  for  fear  a  trap  Is 
being  laid,  and  the  more  the  question  is  unconnected  with  the  circum- 
stances of  the  case,  the  greater  will  be  his  alarm.  Follow  that  up  by 
another  and  another  alike  incomprehensible  to  his  baffled  mind,  and 
then  ask  him  where  he  was  in  the  morning.  That  is  quite  far  enough 
from  the  time  he  has  deposed  to  to  set  him  wondering  what  it  has  to  do 
with  eleven  o'clock  at  night.  As  he  cannot  guess  the  advocate's  mean- 
ing, he  will  be  puzzled  what  answer  to  return;  and,  as  he  will  be  afraid, 
on  the  spur  of  the  moment,  to  attempt  to  invent  a  story,  and  may  not  be 
ingenious  enough  to  do  so,  he  will  probably  tell  the  truth.  Having  got 
thus  far,  the  cross-examiner  starts  with  &fact.  By  the  same  process  he 
may  get  another  and  another  fact.  The  witness  will  be  drawn  on  to  give 
him  facts,  because  he  does  not  know  what  answers  his  companions  may 
give.  He  will  feel  sure  that  the  cross-examiner  will  put  the  same  ques- 
tions to  them.  Presently,  the  advocate  may  get  from  him,  if  a  little 
caution  and  skill  be  used,  what  people  he  met,  and  where  and  at  what 
time — what  they  did  and  where  they  went.  He  has  not  come,  by  any 
means,  prepared  to  set  up  a  dozen  alibis  at  once — some  for  himself  and 
some  for  his  friends — so,  he  must  necessarily  become  confused,  and,  as 
he  will  tell  the  truth  and  lie  at  the  same  time,  the  cross-examiner  will 
find  him  pretty  much  at  his  mercy.  It  may  be  that  he  saw  several  peo- 
ple on  that  morning,  and  he  may  place  so  many  of  them  together,  by  a 
li*;tle  gentle  humoring,  that  the  cross-examiner  may,  at  least,  safely  put 
the  question,  "Were  not  the  people  coming  out  of  church?"  Outwitted, 
the  rogue  will  smile  and  say,  ''No,  it  was  Thursday!''''  but  the  effect  of 
this,  if  done  with  tact,  will  utterly  destroy  the  whole  story.  The  jury 
will  readily  accept  the  suggestion — which,  indeed,  the  advocate  may  be 
able  to  prove  by  independent  testimony— that  the  day  he  is  speaking  of 
must,  from  the  incidents  draicn  from  the  witness,  have  been  Good  Friday y 
and  not  the  preceding  Thursday. 


CONDUCT  OF  A   CRIMINAL  PROSECUTION.        105 

cution  should  be  left  unmolested  if,  haply,  his  trem- 
bling foot  may  find  a  resting-place  thereon  ;  and 
nothing  should  be  asked  of  the  jury  except  the  exer- 
cise of  impartial  judgment  upon  the  facts  before  them. 

But  the  cross-examiner  will  not  rest  there :  at  present  he  has  only 
gone  a  little  portion  of  the  way.  The  next  witness  will  fall  into  the 
eame  blunder,  and  may  add  another  minute  fact  to  the  particles  of  evi- 
dence. Suppose  Thursday  was  a  fine  and  Friday  a  wet  day.  Here  is  a 
field  for  the  exercise  of  ingenuity  which  counsel  should  hail  with  de- 
light; and  he  ought  not  to  sit  down  till  he  has  proved  from  the  witness 
that  the  day  he  and  his  companions  were  together  was  a  wet  day.  Of 
course  the  advocate  will  not  be  able  to  elicit  this  by  direct  questions  or 
in  so  many  words ;  but  answers  do  not  always  consist  in  words,  they  are 
Irequently  conveyed  unwillingly  by  manner  and  demeanor:  are  given 
when  there  is  no  intention  to  give  them,  and  when  the  witness  is  utterly 
ignorant  of  their  effect.  And  the  effect  will  be  the  same,  if  the  advo- 
cate's examination  be  skillful,  as  though  the  witness  answered  him  in 
Actual  words.  The  advocate  would  not  be  weak  enough  to  let  him  sus- 
pect that  he  was  cross-examining  for  a  rainy  day,  otherwise  he  would 
lail;  it  is  only  by  keeping  the  witness  in  the  dark  that  he  can  succeed. 
The  witness'  mind  will  be  working  intensely  the  whole  time  he  is  being 
cross-questioned,  and,  as  his  great  object  will  be  to  And  out  what  the 
■cross-questioner  is  aiming  at,  the  latter's  purpose  must  be  to  conceal  it. 

If  the  advocate  succeed  in  getting  from  these  two  witnesses  an  inci- 
<lent,  however  small,  that  even  tends  to  show  that  the  meeting  took 
place  on  Friday,  he  will  have  almost  demolished  the  alibi.  But  C  comes 
into  the  box  and  may,  by  a  stretch  of  memory,  recollect  for  whom  he 
worked  at  the  time  and  what  particular  work  he  was  engaged  upon ;  and 
It  might  possibly  have  happened  that  some  part  of  the  machinery  broke 
on  that  particular  morning.  Nothing  outside  the  case  is  too  trivial  if  It 
throw  but  the  faintest  gleam  upon  it.  If  he  answers  flippantly  he  will 
be  caught  In  two  or  three  questions  without  much  difficulty.  If  he  an- 
swers overcautlously  he  will  betray  himself  by  his  demeanor,  and  the 
4idvocate  may  follow  him  up  and  give  him  line  like  a  pike  that  has  taken 
the  bait.  But  If  no  work  was  done  and  no  machinery  broken,  the  advo- 
cate will  still  be  able  to  find  out  his  habits,  his  mode  of  living,  and  his 
surroundings;  and  it  will  be  strange  If,  from  all  these,  the  cross-exam- 
iner do  not  lay  hold  of  some  event  which  will  be  shown  by  Its  connec- 
tion with  some  other  event  to  have  happened  on  the  latter  and  not  the 
former  of  the  days  in  question.  The  smallest  incident  may  be  linked  to  a 
greater,  tchich  may  be  either  patent  of  itself  or  notorious  as  to  the  day  of  the 
week  on  tchich  it  took  place.  Other  witnesses  may  be  dealt  with  In  like 
manner,  none  of  them  being  crosi-examined  as  to  the  same  facts  unless  for 
the  purpose  of  contradiction,  but  all  of  them  questioned  as  to  incidents 
which,  small  though  they  be,  will,  in  their  united  strength,  destroy  the 
<ilibi  altogether. 


CHAPTER  X. 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL. 


§  97.    The  Young  Lawyer  Before 
the  Police  Magistrate. 

98.  How  Far  Defense  Should 

Show  Its    Hand  Before 
Committing  Magistrate. 

99.  How  to  Deal  With  a  Defect- 

ive Indictment. 

100.  What  and  How  Many  De- 

fenses to  Make.  . 

101.  Opening  Statement  of  Coun- 

sel for  Defendant. 

102.  Methods  of  Objection  to  Ev- 

idence. 

103.  Emphasizing  Mistakes  of  In- 

accurate Witnesses. 

104.  Cross -Examination    by  the 

Defense — General  Rules. 

105.  Cross-Examination    by  the 

Defense — "  Drawing  Out  " 
an  Opposing  Witness. 

106.  Cross-Examination    by  the 

Defense — How  to   Handle 
Hostile  Witnesses. 


§107.  Whether  or  Not  Witnesses 
Should  be  Called  or  Case 
Submitted  on  State's  Evi- 
dence. 

108.  Closing  Address  for  the  De- 

fense— Calling  Attention  to 
Absence  of  Motive  on  Part 
of  Accused. 

109.  Closing  Address  for  the  De- 

fense— Calling  Attention  to 
Motive  of  Prosecuting  Wit- 
ness. 

110.  Closing  Address  for  the  De- 

fense —  Explaining  A»vay 
Difficult  and  Awkward 
Points  in  the  Evidence. 

111.  Closing  Address  for  the  De- 

fense— Emphasizing  Good 
Character  of  Accused. 

112.  Closing  Address  for  the  De- 

fense— General  Considera- 
tions. 


§97.  The  Young  Lawyer  Before  .'the  Police  Magis- 
trate.— As  inexperienced  advocates  are  frequently 
before  the  magistrates  in  tlieir  professional  capacity, 
it  may  not  be  without  advantage  to  make  a  few 
observations  on  the  conduct  of  a  case  in  those 
courts.  The  mode^in  which  persons  charged  with 
crime  are  defended  at  the  police  court  has  often 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      107 

appeared  to  many  people  as  a  kind  of  preliminary 
retribution  to  that  which  is  to  come.  A  young  advo- 
cate, who  has  had  nothing  of  a  more  serious  nature 
to  defend  than  a  charge  of  drunkenness  or  assault, 
is  suddenly  called  upon  to  pose  before  the  public,  in 
a  case  of  willful  murder  or  some  other  offense,  where 
a  committal  is  absolutely  certain.  How  is  he  to  do 
justice  to  his  client?  There  is  only  one  way,  and 
that  is  to  hold  his  tongue.  One  would  think  advo- 
cacy the  easiest  thing  in  the  world,  requiring  neither 
training,  knowledge,  nor  experience,  to  see  how  per- 
fectly ready  the  young  ad  vocate  is  to  step  into  the 
arena  and  do  battle  in  the  interests  of  the  accused; 
as  if  an  advocate  were  made  by  being  called  to  the 
bar  or  admitted  on  the  roll  of  attorneys.  One  might 
just  as  well  expect  the  indentures  of  an  apprentice 
to  impart  a  knowledge  of  his  handicraft. 

When  a  young  lawyer  has  been  instructed  to 
defend  a  case  of  murder  or  other  serious  offense 
before  a  committing  magistrate  the  best  thing  he  can 
do  is  to  preserve  an  unbroken  silence.  Otherwise 
he  is  almost  sure  to  do  mischief;  and  the  worst  mis- 
chief is  that  he  will  most  likely  tie  up  the  hands  of 
the  counsel  engaged  to  defend  before  the  ultimate 
tribunal.  It  may  be  desirable  to  have  a  fact  or  two 
upon  the  depositions,  but  if  so,  it  will  require  an 
advocate  of  some  experience  to  ascertain  what  those 
facts  shall  be.  The  greatest  discretion  should  be 
used  as  to  whether  a  question  should  be  asked  or 
not.  With  a  very  few  exceptions,  no  cross- 
examination  should  be  administered  when  the  case 
is  to  go  for  trial.  Instead  of  this  course  being  pur- 
sued, a  long  cross-examination  is  often  indulged  in, 
or  the  young  gentleman  who  thinks  he  is  defending 
puts  as  many  questions  as  he  can,  under  the  impres- 
sion that  questioning  is  cross-examination,  and  then 


108  AMERICAN  ADVOCACY. 

answers  are  elicited  detrimental  if  not  destructive 
to  every  chance  of  acquittal.  For  the  purpose  of 
convicting  unfortunate  wretches  who  are  charged 
with  offenses,  tlie  state  need  not  establish  public 
prosecutors  while  young  advocates  defend,  for  these 
gentlemen  can  administer  questions  which  the  law 
forbids  the  prosecuting  counsel  to  ask;  and  what  is 
more,  they  can  privately  question  the  prisoner,  and 
then  by  giving  the  information  so  obtained  in  the 
shape  of  questions  to  the  witnesses  may  display  a 
knowledge  of  circumstances  only  consistent  with  the 
prisoner's  guilt,  as  by  showing  that  he  was  present 
at  the  scene  of  the  crime,  when  probably  the  defense 
is  to  be  an  alibi! 

§  98.  How  Far  Defense  Should  Show  Its  Hand 
Before  Committing  Magistrate. — There  may,  never- 
theless, be  cases  where  it  is  possible  to  avoid  a  com- 
mittal by  bringing  all  the  facts  before  the  magistrate. 
And  this  may  be  done  sometimes  even  in  the  most 
serious  charges.  But  no  inexperienced  advocate 
should  be  intrusted  to  defend  under  such  circum- 
stances.^ 


'  This  waa  successfully  done  some  time  since  in  a  case  in  England 
which  attracted  considerable  attention  from  its  remarkable  peculiari- 
ties. A  woman  had  been  murdered  in  a  very  shocking  manner  in  a 
house  of  ill-  ame  near  Oxford  street,  London.  The  police,  as  is  cus- 
tomary, obtained  the  all-important  clew,  and  it  was  therefore  necessary 
to  obtain  a  prisoner.  They  followed  it  up  with  that  remarkable  intelli- 
gence which  always  characterizes  the  "Force"  in  heavy  cases;  and 
losing  the  clew  for  a  moment  on  board  a  vessel  which  was  outward 
bound,  found  it  again  almost  immediately  in  the  very  spot  where  they 
had  missed  it.  Instead,  however,  of  arresting  the  man  they  were  after, 
*'from  information  received,"  they  pounced  upon  an  inoffensive  and 
mild-looking  clergyman  and  charged  him  with  willful  murder.  Witnesscg 
were  soon  obtained  (the  supply  in  London  always  being  equal  to  the 
demand,  whatever  may  be  the  commodity  you  require),  who  saw  the 
reverend  gentleman  leave  the  brothel  where  the  deceased  woman  wa 
found  immediately  after.  The  singular  part  of  the  story  waa,  that  lis  £r 
exactly  corresponded  with  the  man  whom  they  did  not  see  leave  the  honM, 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      109 

Many  cases  there  are  where  a  judicious  examina- 
tion in  the  first  instance  before  the  magistrate  would 
insure  the  discharge  of  the  accused,  but  in  all  these 
cases  an  advocate  of  some  experience  should  be 
retained.  It  may  be  taken  as  a  good  rule  that  where 
a  case  is  going  for  trial  no  defense  should  be  raised. 
It  should  be  carefully  watched,  and  a  question  here 
and  there  judiciously  interposed  where  something  is 
certain  to  be  obtained  favorable  to  the  accused. 
Where  the  answer  is  doubtful  it  should  never  be 
risked.  Severe  cross-examinations  and  magnificent 
police-court  speeches  can  only  be  useful  to  the  pros- 
ecution. 

If,  however,  the  case  of  the  accused  rests  upon 
his  calling  witnesses,  this  will  necessitate  their 
being  before  the  magistrate,  otherwise  it  will  oper- 
ate to  the  prejudice  of  the  defense  at  the  trial. 
The  prisoner,  moreover,  if  they  are  "bound  over,'* 
will  have  the  advantage  of  their  expenses  being 
provided  for  if  the  judge  considers  their  evidence 
material  and  trustworthy.  But  if  called  it  is  only 
necessary  to  give  the  outline  of  their  evidence,  a 
full  outline  it  may  be,  but  the  details  should  be  judi- 
ciously reserved.  It  is  a  good  plan  sometimes  to 
have  witnesses  before  the  magistrate  and  not  call 
them  if  you  can  avoid  it.  It  takes  the  sting  from 
the  question,  "Were  you  before  the  magistrate?" 
or    "When    were    you    asked    to    give    evidence?" 

and  whom  the  police  were  in  quest  of  when  they  boarded  the  vessel.  Of 
course  it  was  of  the  utmost  importance  that  this  gentleman  should  not 
be  committed  for  trial,  although  a  conviction  would  have  been  utterly 
impossible.  It  was  consequently  necessary  to  cross-examine  the  wit- 
nesses and  to  call  evidence.  This  was  accordingly  done,  and  it  was 
clearly  established  that  the  reverend  prisoner  was  perfectly  innocent  of 
the  charge;  that  he  was  elsewhere  at  the  time  he  was  said  to  have  been 
in  the  street;  and  that  no  single  circumstance  in  regard  to  his  con- 
duct required  explanation. 


110  AMERICAN  ADVOCACY. 

This  is  very  often,  as  Brougham  would  say, 
'  ''expedient. ' ' 

§  99.  How  to  Deal  With   a  Defective  Indictment.  — 

Let  it  now  be  assumed  that  the  prisoner  has  been 
duly  committed  for  trial,  and  that  a  "True  Bill"  has 
been  found  by  the  grand  jury.  It  is  the  first  business 
of  the  counsel  instructed  to  defend  to  see  what  charges 
the  indictment  contains.  This  duty  is  more  often  than 
not  neglected  by  junior  barristers,  and  the  conse- 
quence sometimes  is  that  a  prisoner  is  convicted  on 
a  bad  indictment.  It  contains,  perhaps,  no  offense 
known  to  the  law,  or  it  contains  too  many  offenses; 
something  is  not  set  out  which  should  be,  or  there 
may  be  a  great  deal  too  much  set  out.  There  may  in 
short  be  some  "flaw"  which,  if  taken  advantage 
of  in  a  proper  manner,  would  insure  the  acquittal 
of  the  accused.  This  is  by  no  means  of  such  rare 
occurrence,  notwithstanding  the  powers  of  amend- 
ment and  the  improved  methods  of  pleading,  as  to 
make  it  a  matter  of  little  moment  to  examine  minutely 
the  indictment. 

Referring  now  to  advocates  who  are  good  lawyers, 
when  they  have  carefully  and  critically  perused  the 
indictment,  they  probably  know  exactly  what  it  con- 
tains, and  will  therefore  not  move  without  strong 
necessity  to  have  it  quashed — as  this  is  by  no  means 
a  safe  proceeding.  Indeed,  the  advocate  should 
under  such  circumstances  give  no  opportunity  of 
amending,  where  by  taking  objection  at  the  proper 
time,  he  will  compel  his  opponent  to  "elect"  as  to 
which  of  the  counts  he  will  proceed  upon;  and  that  he 
should  not  prematurely  take  an  objection  where  he 
should  reserve  his  attack  for  the  forlorn  hope  of  a 
motion  in  arrest  of  judgment. 

§  100.  What  and  How  Many  Defenses  to  Make.  — 
These  points  having  been  carefully  considered,  and 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      Ill 

the  advocate  having  thoroughly  made  up  his  mind  as 
to  what  the  defense  is  to  be,  remembering  always 
that  one  good  defense  is  better  than  two,  he  must 
now  watch  carefully  the  opening  of  the  case  for  the 
prosecution.  If  his  adversary  open  too  much  it  will 
be  a  point  in  his  favor.  "A  guilty  man,"  says  Whately, 
*'may  often  escape  by  having  too  much  laid  to  his 
charge;  so  he  may  by  having  too  much  evidence 
against  him,  i.  e.^  some  that  is  not  itself  satisfactory; 
thus  a  prisoner  may  sometimes  obtain  an  acquittal  by 
showing  that  one  of  the  witnesses  against  him  is  an 
infamous  informer  and  spy,  though  perhaps  if  that 
part  of  the  evidence  had  been  omitted  the  rest  would 
have  been  sufficient  for  conviction."^ 

§  101.  Opening  Statement  of  Counsel  for  Defendant. 
— The  opening  statement  of  counsel  for  defense 
may  be  made  immediately  after  that  for  the  prose- 
cution, or,  in  the  discretion  of  the  court,  after  the 
close  of  the  evidence  for  the  prosecution.  It 
is  conceded  that  in  the  great  majority  of  cases 
the  opening  statement  of  the  defense  comes  with 
greater  effect  after  the  state  has  closed  its  case 
than  before,  for  the  reason  that  the  facts  then  stated, 
as  intended  to  be  proved,  offer  an  explanation  of  the 
facts  already  proven,  and  thus,  in  a  measure,  change 
the  view-point  of  the  jury  to  one  more  favorable  to 
defendant. 

The  opening  address  of  counsel  for  defendant, 
especially  if  made  after  the  close  of  the  case  for  the 
prosecution,  should  be,  above  all  things,  conciliatory. 
The  time  for  vociferation  and  bold  argument,  if  at  all, 
is  in  the  closing  speech.  The  object  of  the  opening 
statement  should  be  merely  to  draw  the  minds  of  the 
jury  into  a  favorable  attitude  toward   the  defendant 

1  Whately's  Elements  of  Logic,  B.  lU,  Sec.  18. 


112  AMERICAN  ADVOCACY. 

and  the  introduction  of  his  evidence  in  his  favor;  to 
arouse  their  sympathy  and   to  gain  their  confidence. 

In  harmony  with  the  general  tendency  of  our  laws 
to  favor  the  defendant,  few  restrictions  are  placed 
upon  counsel  for  the  defendant  in  his  opening  state- 
ment. The  trial  court,  however,  always  properly 
*  restricts  him  from  stating  matters  which  would  be 
inadmissible  in  evidence.^ 

§  102.  Methods  of  Objection  to  Evidence. — Again, 
if  the  prosecution  inadvertently  open  a  case  differing 
materially  from  the  evidence  of  witnesses,  or  any  of 
them,  it  will  be  matter  of  observation  which  will  not 
be  without  its  effect.  It  is  not  the  business  of  the  de- 
fendant's counsel  to  object ;  he  does  not  know  what  the 
prosecution  can  prove,  and  if  the  latter's  proof  fall 
short,  so  much  the  better  for  his  client.  But  he  must 
narrowly  watch  and  object  if  counsel  for  the  prosecu- 
tion propose  to  read  any  letter  or  document,  or  state 
any  conversation  which,  when  the  proper  time  comes, 
may  not  be  admissible.  It  is  useless  after  the  mis- 
chief  has  been  done  and  the  impression  made  on  the 
minds  of  the  jury,  for  the  judge  to  say,  "I  shall  tell 
the  jury  that  that  document  or  that  conversation  is- 
not  evidence,  and  they  are  to  dismiss  it  from  their 
minds."  They  cannot  dismiss  it  from  their  minds, 
and  it  is  evidence,  no  matter  whether  called   so  or 


1  Meyer  V.  state  (Tex.  Cr.  App.).  41  S.  W.  Rep.  632.  In  this  case ^ 
which  was  a  trial  of  a  defendant  for  assault  upon  his  wife,  defendant's 
counsel  was  permitted  in  his  opening  statement  to  comment  on  his 
wife's  appearance  on  the  witness  stand,  and  her  manner  of  testifying,, 
so  far  as  the  same  might  tend  to  affect  her  credibility.  But  it  was  held 
that  it  was  not  error  to  refuse  to  permit  him  to  also  state  to  the  jury 
thatit\^a8  shown  by  her  appearance,  disposition,  *'the  looks  of  her 
eyes,  her  conduct,  her  demeanor,  and  manner  of  testifying,  that  she  is 
not  a  woman  of  private  or  domestic  habits,  but  a  woman  of  worldly 
experience,  of  heartless  feelings,  devoid  of  modesty,  and  of  reckless- 
and  adventurous  character  " 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      113 

not,  when  once  before  them,  and  will  in  all  human 
probability'-  have  an  influence  on  their  judgment.  It 
is  like  the  village  lawyer  telling  the  man  that  they 
could  not  put  him  in  the  stocks;  the  irrefutable 
answer  was,  "But  I  am  here."  The  defendant's 
lawyer  must  further  take  care  that  if  he  succeed  in 
shutting  out  a  document  he  exclude  also  all  obser- 
vations upon  it,  for  nothing  is  more  unfair  than  to 
allude  to  matter  which  is  not  in  evidence;  although 
it  is  often  inadvertentl}^  done. 

While  the  advocate  exei'cises  the  utmost  vigilance 
to  prevent  the  admission  of  matter  which  is  not  evi- 
dence, care  should  be  taken  not  to  object  to  every 
question  on  that  account,  or  because  it  may  be  put 
in  a  leading  form  or  in  a  form  that  may  be  otherwise 
objectionable.  Too  many  objections  have  the  bad 
effect  of  wasting  time  and  of  raising  an  unjust  sus- 
picion in  the  mind  of  the  jury. 

That  the  defendant's  attorney  should  preserve  the 
most  even  and  calm  demeanor  in  conducting  a  crim- 
inal defense  it  is  hardly  necessary  to  observe.  It  is, 
indeed,  a  part,  and  no  unimportant  part,  of  his  case. 
Irritation  andquerulousness  are  bad  accompaniments 
of  the  best  defense;  and  if  he  win,  it  will  be  in  spite 
of  them,  and  not  by  their  assistance.  Let  the  worst 
be  stated  against  him,  but,  if  possible,  he  should  not 
let  the  worst  be  proved.  This  must  be  his  object  in 
following  closely  the  witnesses  for  the  prosecution. 

§  103.  Emphasizing  Mistakes  of  Inaccurate  Wit- 
nesses.— The  defendant's  attorney  must  be  careful 
to  note  the  points  of  difference  between  the  witnesses 
as  weU  as  the  points  of  agreement.  For  observe: 
They  may  agree  on  some  point  in  his  favor  and  dis- 
agree as  to  something  which  is  against  him,  and 
indeed,  any  disagreement  may  be  turned  to  advan- 
tage.    With  a  little  experience  and  a  good  deal  of 

8 


114  AMERICAN  ADVOCACY. 

observation  he  will  be  able  to  distinguish  between 
those  matters  of  detail  which  sometimes  betray  per- 
jured testimony,  and  details  which  are  of  no  import- 
ance whatever;  as  also  to  distinguish  between  mere 
inaccuracies  in  the  evidence,  arising  from  a  slovenly 
habit  of  thought,  and  inaccuracies  which  are  artfully 
contrived  to  deceive.  Inaccurate  witnesses,  when 
properly  cross-examined,  will  often  destro}^  the 
effect  of  the  most  accurate,  as  they  will  raise  a  doubt 
where  none  would  otherwise  exist.  Inaccuracies, 
therefore,  as  to  date,  time,  place,  position  of  the 
parties,  what  was  said,  by  whom,  and  other  matters 
of  a  like  kind,  ought  not  to  be  overlooked,  due  regard 
being  had  to  what  was  before  observed  as  to  mere 
discrepancies. 

§  104.  Cross  Examination  by  the  Defense  —  Gen- 
eral Rules. — In  cross-examination  the  utmost  care 
should  be  exercised ,  otherwise  the  facts,  instead  of 
being  toned  down,  will  stand  out  the  more  clearly. 
The  danger  is  so  great  to  the  unfortunate  object 
whose  fate  may  be  determined  by  an  injudicious 
question,  that  the  advocate  had  better  not  cross- 
examine  at  all  if  he  has  not  perfect  confidence  in  the 
line  he  is  taking,  and  that  the  answers  will  not 
endanger  his  libert}^  of  life.  If  the  advocate  don't 
know  what  to  ask,  ask  nothing.^ 

1  "1  do  not  think,"  says  Mr.  Harris,  "that  any  advocate,  however 
clever  he  may  be,  should  take  upon  himself  a  defense  of  any  import- 
ance till  he  has  had  some  experience.  Xo  man  without  it  can  cross- 
-examine unless  at  great  risk.  He  may  ask  questions  and  get  answers, 
but  he  will  be  a  wonderfully  fortunate  man  if  he  do  not  inflict  more 
damage  upon  his  client  than  upon  the  witness.  It  has 
•often  occurred  that  .after  a  spirited  cross-examination  by  a  young 
advocate,  he  has  made  the  observation,  'I  think  I  have  settled  him, 
haven't  I?'  In  the  civility  of  my  heart  I  have  answered,  'Yes,  I 
think  you  have.''  At  the  same  time,  I  have  no  doubt  we  were  speaking 
of  two  very  different  persons,  he  referring  to  the  witness  and  I  to  his 
unfortunate  client." 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      115 

The  best  preparation  a  man  can  have  to  qualify 
himself  to  cross-examine  is  to  study  carefully  the 
mode  in  which  the  best  men  proceed,  and  to  acquire 
a  knowledge  of  character,  of  human  nature,  of  what 
is  called  "the  world."     One  man  may  have  a  greater 
aptitude  than  another,  but  with  the  most  gifted  it 
requires  years  of  training  and  observation  to  arrive 
at  anything  like  perfection.     With  the  ordinary  indi- 
vidual, therefore,  too  much  study  cannot  be  given  to 
acquiring  sound  knowledge  of  the  art.     While  his 
cross-examination  is  proceeding,  the  counsel  for  the 
prosecution  will  watch  for  supplemental  evidence,  or 
for  an  opening  through  which  he  may  drag  some  in. 
Frequently,  he  would  have  few  materials  to  ask  a 
verdict  upon  without  this  so-called  examination,  and 
that  being  so,  the  defendant's  attorney  should  ask  as 
little  as  he  possibly  can.     If  he  cannot  serve  his  client 
he    should    avoid     injuring    him.     Of    course,    the 
greater  his  ability    and    the    more    knowledge    he 
acquires,  the  more  he  will  be  able  to  accomplish  with 
the  fewest  questions. 

§  105.  Cross-Examination  by  the  Defense — "Draw- 
ing Out"  an  Opposing  Witness. — At  the  commence- 
ment it  is  a  good  plan  to  throw  out  one  or  two  trifling 
and  harmless  questions  in  order  to  ascertain  the  tern 
per  and  feeling  of  the  witness.  It  will  tend  also  to 
put  him  on  good  terms  with  the  advocate,  if  there  be 
a  necessity  for  it.  He  may  have  been  brought  into 
court  against  his  will  and  obliged  to  say  what  he  has 
said;  but  with  mild  encouragement  and  a  little  gentle 
leading  he  will  probably  follow  you  with  the  docility 
of  a  friendly  witness.  He  may  know  a  great  deal 
more  than  he  has  said,  and  what  he  knows  may  throw 
much  light  on  what  has  gone  before.  He  may  be  a 
well-disposed  witness,  after  all,  and  inclined  to  give 
ja,  different  color  to  the  case.     Everyone  knows  how 


116  AMERICAN   ADVOCACY. 

much  a  little  coloring  changes  the  appearance  of  a 
bare  wall;  so  it  does  the  aspect  of  a  hare  fact.  But  if 
the  advocate  commence  by  treating  the  witness  in  a 
hostile  spirit,  as  though,  being  a. witness  for  the  pros- 
ecution, he  must  necessarilj"  be  adverse  in  feeling  to 
the  prisoner,  he  will  lose  the  benefit  of  all  the  kind 
things  he  may  be  able  to  say  in  his  behalf. 

§  106.  Cross-Examination  by  the  Defense  —  How  to 
Handle  Hostile  Witnesses.  —  If,  on  the  other  hand, 
the  advocate  perceive  that  the  witness  has  a  strong* 
feeling  in  the  matter,  the  less  he  has  to  do  with  him 
the  better.  He  will  drive  every  nail  home  which  the 
prosecution  may  not  have  struck  forcibly  enough. 
Ask  him  one  question:  he  will  answer  as  if  he  had 
been  asked  half  a  dozen,  and  every  answer  will  be 
unfavorable.  The  cross-examiner  might  as  well  butt 
the  witness-box  with  his  head  (and  better,  for  his 
client's  sake)  as  question  a  witness  of  this  kind.  If 
he  should  get  anything  favorable  it  will  be  by  acci- 
dent, and  because  the  witness  does  not  perceive  the 
drift  of  the  question.  Everything  the  advocate  asks 
gives  him  the  opportunity  for  a  speech  against  the 
prisoner.  If  the  advocate  can  show  the  witness''  strong 
feeling  by  a  well-conceived  question  or  two,  it  is  all  he 
ought  to  attempt  with  a  witness  of  this  kind,  unless, 
indeed  he  can  convict  him  of  an  untruth.  These  are 
his  only  chances  with  such  a  witness. 

But  many  hostile  witnesses  may  be  treated  in  a 
different  manner,  according  to  their  degrees  of  hostil- 
ity and  their  temperament.  The  advocate  may  some- 
times destroy  the  effect  of  the  evidence  of  an  adverse 
witness  by  making  him  appear  more  hostile  than  he 
really  is.  He  may  make  him  exaggerate  or  unsay 
something  and  say  it  again.  If  he  cannot  pull  him  off 
his  high-horse  on  one  side  he  may  perliaps  push 
him  over  on  the  other;  and,  so  long  as  he  get  him 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      117 

off,  it  does  not  much  matter  on  which  side  he  lands 
him.  Perhaps  the  witness  will  show  himself  spiteful^ 
and  lose  his  temper  at  the  same  time;  if  so,  it  will  be 
in  the  advocate's  favor,  for  juries  dislike,  above  aU 
things,  to  see  spite  in  the  witness-box. 

§  107.  Whether  or  Not  Witnesses  Should  be  Called 
or  Case  Submitted  on  State's  Evidence.  —  Having 
completed  his  duty  in  the  above  respect,  the  advo- 
cate will  not  be  indiscreet  enough  to  "submit  to  the 
court  that  there  is  no  evidence  to  go  to  the  jury,"  if 
there  be  some;  but  will  consider  whether  he  will  call 
witnesses,  if  he  should  not  have  made  up  his  mind  at 
an  earlier  stage  of  the  case.  If  the  evidence  against 
him  be  weak,  and  his  own  not  strong,  he  ought  not 
to  call  any.  By  doing  so  he  will  lose  the  last  word, 
and,  what  is  perhaps  of  far  greater  importance,  run 
the  risk  of  strengthening  the  case  against  him  on  the 
cross-examination  by  the  counsel  for  the  prosecutio7i. 
This  has  often  been  done  to  the  ruin  of  the  accused. 

If  at  length  the  advocate  find  that  he  ought  to  call 
witnesses,  he  should  avoid  calling  too  many;  or 
rather  too  many  to  the  same  subject-matter.  One 
good  witness  is  worth  a  dozen  indifferent  ones,  and  it 
is  much  easier  to  get  contradictions  from  a  dozen 
than  from  two  or  three.  The  advocate  should 
remember,  too,  that  a  contradiction  in  his  witnesses 
will  be  a  much  more  serious  affair  than  a  contradic- 
tion among  those  of  the  other  side;  for,  though  the 
law  presumes  every  man  innocent  until  he  be  proved 
guilty,  the  jury  presumes  every  man  on  his  trial  to  be 
guilty  until  the  evidence  fails  to  convict  him.  They 
will  look  in  most  cases  with  some  suspicion  upon  the 
evidence  for  the  defense,  and  every  weak  point  in  it 
will  be  magnified  accordingly.  In  most  cases  the 
witnesses  for  a  prisoner  either  save  or  convict  him. 
If  they  are  good  witnesses  and  honest,  they  are  of 


118  AMERICAN  ADVOCACY. 

inestimable  importance,  but  if  they  are  shady,  they 
will  almost  always  be  shaky,  and  infinitely  worse 
than  none  at  all. 

§  108.  Closing  Address  for  the  Defense  —  Calling 
Attention  to  Absence  of  Motive  on  Part  of  Accused. — 
But  whether  the  advocate  call  them  or  not,  he 
will  at  last  come  to  that  very  important  part  of  his 
duty,  namely,  his  speech  on  behalf  of  his  client.  The 
advocate  will  now  in  the  pleasantest  manner  but  with 
due  gravity  commence  his  defense,  and  if  the  accused 
be  a  person  of  character,  especially  if  he  occupy  any 
position  in  the  social  scale,  he  will  do  so  by  bringing" 
those  facts  prominently  before  the  jury.  Nothing  is 
more  calculated  to  engage  their  attention  and  enlist 
their  sympathies  than  this,  besides  which  the  advo- 
cate excites  as  well  as  gratifies  their  curiosity.  This 
feeling  is  akin  to  surprise,  and,nothing  takes  a  firmer 
hold  of  the  attention.  At  the  same  time  he  will  almost 
have  excited  the  hopes  of  the  jury  on  behalf  of  the 
accused.  The  prosecutor  will  have  passed  from 
their  minds  and  a  new  object  presented  itself, 
namely,  that  of  a  respectable,  well-educated  man  in 
the  dock.  Imagination  deepens  the  disgrace  and 
awakens  still  tenderer  sympathies  on  his  behalf. 
They  will  be  sure  to  think,  without  any  reminder  on 
the  advocate's  part,  of  those  belonging  to  him,  and 
of  the  hearts  that  beat  in  unison  with  his  own.  This 
is  a  part  which  should  not  be  hurried  but  given  time 
to  play.  Now  the  advocate  should  bring  forward  the 
charge;  if  it  be  one  of  enormous  guilt,  or  of  a  mean  and 
despicable  kind,  or  one  revolting  to  humanity,  what  a 
contrast  is  produced  between  the  character  and  the 
crime!  There  is  an  inherent  improbability  against 
such  a  man  committing  such  an  offense!  That  is  a 
good  contrast  to  start  with.  And,  here  again,  the 
advocate  should  be  careful  not    to  hurry  the  jury 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      119 

away  from  so  good  a  situation  in  the  drama.  If  he 
has  performed  this  part  of  his  defense  with  art  and 
skill  he  has  already  prepared  the  mind  for  the 
impressions  that  are  to  come.  A  little  lingering 
around  the  scene,  without  too  much  to  say,  only  to 
give  time  before  he  addresses  himself  to  argument, 
will  be  beneficial.  Let  them  just  have  time  to  con- 
template the  scene  and  take  in  its  misery. 

Connected  with  the  improbabilities  will  be,  possi- 
bly, absence  of  motive.  If  so,  the  subject  comes  in 
naturally  at  this  point.  If  a  motive  has  been  sug- 
gested it  must  be  grappled  with  and  should  be  as 
soon  as  possible;  if  not,  it  is  a  happy  circumstance 
to  be  commented  upon  briefly  but  with  fervor. 

§  109.  Closing  Address  for  the  Defense — Calling  At- 
tention to  Motive  of  Prosecuting  Witness. — Perhaps  the 
advocate  will  discover  some  motive  for  the  prosecu- 
tion apart  from  the  divine  "interests  of  justice;"  if 
so,  that  is  a  kind  of  torpedo  which,  when  he  explodes 
it,  will  blow  the  honest  prosecutor  out  of  the  water. 
Having  reached  this  point,  now  will  be  the  time  for  a 
display  of  his  powers  of  declamation.  So  he  may 
prepare  to  use  them  without  delay,  for  he  has  Innocence 
in  the  dock  and  Guilt  in  the  witness-box!  Such,  at 
least,  in  the  eyes  of  the  jury,  is  the  last  situation  in 
the  drama.  And  here  he  may  resume  his  seat  while 
the  curtain  is  dropped.  If  any  one  thinks  this  pic- 
ture exaggerated  or  overdrawn,  the  only  answer  is 
that  it  is  from  life.  Many  an  eloquent  advocate 
past  and  present  has  accomplished  all  that  has  been 
said  by  the  same  or  similar  means.  And  whenever 
the  advocate  reaches  a  point  in  a  defense  where  th« 
minds  of  the  jurj'-  are  wavering,  and  where  he  can 
honestly  excite  a  prejudice  against  the  prosecutor  or 
his  witnesses,  a  few  heart-warm  sentences  of  well- 
timed  declamation  are  all  that  is  necessary  to  demol- 


120  AMERICAN   ADVOCACY. 

ish  the  case  for  the  prosecution.  Declamation, 
judiciously  employed,  is  like  cavalry  in  battle,  dash- 
ing in  just  as  the  enemy  is  on  the  point  of  yielding 
and  sweeping  him  from  th«  field. ^ 

§  110.  Closing  Address  for  the  Defense — Explaining 
Away  Difficult  and  Awkward  Points  in  the  Evidence. — 
The  jury  will  follow  the  advocate  sentence  by  sen- 
tence and  word  for  word,  and  the  stronger  his  argu- 
ments the  more  intently  they  listen.  If  now  he  can 
point  out  how  thej  may  acquit  consistentl}^  with  their 
oaths,  they  will  feel  inclined  to  do  so.  If  he  can  ex- 
plain away  satisfactorily  one  or  two  awkward  points 
in  the  evidence,  the  verdict  will  be  his.  It  has  re- 
duced itself  to  this  already.  Without  the  employ- 
ment of  any  clap-trap  he  has  gone  a  long  way  on  the 


1  William  Howitt,  in  speaking  of  Erskine  as  an  advocate,  says: 
"Lord  Erskine  has  been  pronounced  by  other  distinguished  lawyers  the 
greatest  forensic  orator  that  England  has  ever  produced,  but  his  fiery 
and  electric  eloquence  was  not  more  remarkable  than  the  warm  and 
noble  impulses  of  his  heart.  They  were  his  humanity  and  patriotism, 
his  indignation  against  whatever  was  unjust  and  oppressive,  which 
kindled  and  inspired  his  great  intellect,  and  their  expression  carried  irre- 
sistibly the  souls  of  his  hearers  along  icith  him.  Under  the  fervid  outgush 
of  his  intense  love  of  right,  his  vehement  hatred  of  human  wrong,  the 
dullest  hearts  caught  a  new  life  and  fire,  and  he  drew  verdicts  from  men 
who,  without  his  communicated  spirit,  would  have  never  dreamed  of 
the  sublime  heights  of  truth  and  justice  to  which  he  carried  them. 
The  secret  of  his  triumphs  was  the  possession  of  a  noble  heart  vivifying 
a  quick  and  instinct-like  intellect.  He  seemed  to  spring  at  once  to  the 
truth  of  the  case  submitted  to  him,  and  he  hurried  his  hearers  with  him 
almost  unconsciously  to  the  same  goal.  It  is  rare  to  see  a  mind  like 
Erskiue's  surviving  all  the  cold  cautions  and  technical  sophistries  of  a 
legal  education,  and  seeking  its  triumphs  only  in  the  triumphs  of 
humanity;  a  mind  unseduced  by  royal  favor  or  party,  much  less  by 
selfish  individual  interests ;  exulting  in  securing  the  victory  of  truth, 
even  at  the  highest  peril  of  self-sacrifice.  Such  men  may  have  their 
weaknesses,  as  Erskine  had  his,  but  they  have  a  strength  to  which  no 
mere  intellect  or  learning  can  ever  reach.  For  this  reason  there  is  no 
life  of  any  lawyer  which  I  ever  read  with  the  same  delight  as  I  have 
read  that  of  Thomas  Erskine." 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      121 

road.  He  has  reached  the  feelings  of  the  jury  and 
they  wish  to  acquit.  Now,  it  is  the  advocate's  duty 
to  show  how  it  can  be  done.  He  should  bring  up  the 
evidence  for  the  prosecution,  not  like  a  tender  deli- 
cate creature,  to  be  nurtured  as  it  was  by  tlje  counsel 
on  the  other  side,  but  like  a  hideous  thing  to  be 
looked  at  and  put  away  out  of  sight.  What  is  this 
evidence?  Can  he  proceed  to  show  that  it  is  not  con- 
sistent as  a  truthful  story  should  be,  but  a  patch- 
work performance  of  many  pieces  and  many  colors, 
a  thing  of  no  pattern?  If  so,  it  begins  to  lose  its 
hold  upon  the  jury;  the  improbabilities  thicken  and 
strengthen;  there  is  increasing  sympathy  for  the 
accused  as  each  juryman  begins  to  think  he  may  be 
the  victim  of  a  terrible  mistake,  or  worse,  of  a  horri- 
ble conspiracy!  Encourage  that  feeling,  not  by  say- 
ing that  it  is  so,  but  by  leading  their  minds  to  form 
the  conclusion  for  themselves.^ 

§  111.  Closing  Address  for  the  Defense — Emphasizing 
Good  Character  of  Accused. — If  the  advocate  has  called 
witnesses,  of  course  his  obvious  duty  will  be  to  point 
out  the  contrast  between  their  evidence  and  that  of 
the  witnesses  for  the  prosecution,  as  well  as  the  fact 
of  its  being  more  compatible  with  the  character  of 


'  Surely  such  a  charge  should,  if  made,  be  supported  by  conclusive 
and  unimpeachable  evidence,  not  such  as  is  open  to  the  observations 
you  are  making;  not  by  evidence  every  part  of  which  seems  to  be  giv- 
ing way  under  examination.  And  can  you  not  point  out  how  a  man  with 
an  estimable  character  should  not  be  destroyed  by  witnesses  without 
any  character  at  all?  If  there  be  one  such  among  the  witnesses  for  the 
prosecution,  it  will  answer  your  purpose.  It  may  be  the  prosecutor 
is  a  rapacious  money-lender  and  the  accused  a  man  who  borrows.  The 
prosecutor  may  be  a  wrecker  of  homes  and  the  prisoner  a  man  whose 
home  is  wrecked,  and  who  is  prosecuted  for  obtaining  money  by  some 
false  pretense  upon  a  bill  of  sale.  Accuser  and  accused  may  thus  be 
brought  into  contrast  until,  at  last,  the  one  will  be  looked  upon  with 
contempt  and  the  other  with  compassion. 


122  AMERICAJ^  ADVOCACY. 

the  accused.  He  will  perceive  that  character  stands 
prominently  forward  again  and  again  without  any 
ostentatious  display.  It  should  not  be  used  as  though 
in  so  many  words  he  asked  the  jury  to  acquit  because 
the  prisoner  bore  a  good  character;  it  is  of  great 
weight  where  probabilities  are  balanced  and  circum- 
stances are  doubtful — where  they  may  receive  a  con- 
struction either  favorable  or  unfavorable  to  the  per- 
son charged.  It  should  play  its  part  like  the  principal 
character  in  a  drama,  appearing  always  at  the  right 
time  and  in  the  appropriate  scene.  It  is  the  one  thing 
that  has  saved  many  a  rogue  from  his  well-deserved 
doom;  but  it  has  also  saved  many  an  honest  man,  un- 
justly charged,  from  ruin  and  many  a  family  from 
misery  and  degradation.  If  the  advocate  has  this 
ally,  the  enemy  must  be  strong  who  defeats  him.  Of 
course  there  are  cases  where  character  does  not  and 
cannot  avail,  however  excellent  it  may  be;  but  there 
are  so  many  where  it  is  of  inestimable  importance 
that  it  cannot  be  out  of  place  to  insist  upon  it  as 
though  there  were  hardly  an  exception. 

§  112.  Closing  Address  for  the  Defense — General  Con- 
siderations.— One  of  the  most  seductive  temptations 
to  an  advocate  in  making  the  closing  address  to  the 
jury  for  the  defendant  is  to  wander  from  the  point  at 
issue  and  go  skylarking  into  the  ethereal  realms  of 
glittering  generalities,  charming  the  jury  and,  inci- 
dentally, the  galleries  by  his  beautiful  word  imagery 
and  his  rythmic  and  resounding  rhetoric.  The 
spell  created  by  such  eloquence,  if  we  may  be  par- 
doned the  sacrilege  of  using  that  word  in  this  con- 
nection, is  momentary;  it  is  gone  ere  the  echoes  of 
the  speaker's  voice  have  hushed.  It  matters  not  how 
much  of  oratory  and  word  imagery  is  present  if 
they  spring  up  and  fl.ower  naturally  from  the  sound 
arguments  and  the  deep  earnestness  of  the  speaker  j 


CONDUCT  OF  A  DEFENSE  IN  A  CRIMINAL  TRIAL.      123 

otherwise  they  are  as  sounding  brass  and  tinkling 
cymbal.^  • 

In  many  cases  the  advocate  for  the  defense,  should 
get  into  the  jurj^  box  and  become  one  of  the  jury. 
That  is  to  say,  he  should  confer  with  them  over  the 
case  in  a  calm,  earnest  manner.  Our  own  opinion  is 
that  this  method  of  speaking  follows  with  more  force 
after  a  stirring  appeal  has  been  made  to  the  emotions 
of  the  jury.  Indeed,  it  is  more  successful  as  a  clos- 
ing appeal  than  a  glittering  and  resounding  pero- 
ration.^ 


J  Dr.  Hall  said :  "If  I  were  upon  trial  for  my  life,  and  my  advocate 
should  amuse  the  jury  with  tropes  and  figures,  burying  his  argument 
beneath  a  profusion  of  tropes  and  figures,  I  would  say  to  him :  'Tut, 
man,  you  care  more  for  your  vanity  than  for  my  hanging.  Put  your- 
self in  my  place ;  speak  in  view  of  the  gallows  and  you  will  tell  your 
story  plainly  and  earnestly.'  I  have  no  objection!  to  a  lady's  winding  a 
sword  with  ribbons  and  studding  it  with  roses  when  she  presents  it  to 
her  lover,  but  in  the  day  of  battle  he  will  tear  away  the  ornaments  and 
present  the  naked  edge  of  the  blade  to  the  enemy." 

Another  learned  critic  says :  "The  reason  and  judgment  reject  the 
unsubstantial  and  airy  creations  of  an  unfettered  imagination.  They 
demand  that  chaste  thought,  and  not  unadorned  diction,  in  which  the 
cause  itself  may  be  said  to  speak,  and  the  speaker  is  comparatively  silent." 

2  Of  Lord  Abinger  (Mr.  Scarlett)  it  was  said  that  a  juror,  who  had 
given  him  many  verdicts,  on  being  asked  what  he  thought  of  the  differ- 
ent leaders,  said :  "Well,  that  lawyer  Brougham  be  a  wonderful  man; 
he  can  talk,  he  can;  but  I  don't  think  nothing  of  Lawyer  Scarlett." 
"Indeed,"  replied  his  interrogator,  "you  surprise  me.  Why,  you  have 
been  giving  him  all  the  verdicts!"  "Oh,  there's  nothing  in  that,"  said 
the  juror,  "he  be  so  lucky,  you  see;  he's  always  on  the  right  side." 
David  Paul  Brown  said  of  this  great  advocate :  "In  addressing  a  jury 
he  seemed  rather  to  argue  his  case  with  them  than  to  them,  and,  in  the 
language  of  one  of  his  competitors,  he  virtually  got  Into  the  jury-box 
and  took  part,  as  it  were,  in  the  decision  of  his  own  case." 


CHAPTER  XI. 


CLASSES  OF  WITNESSES. 


§113. 

The  Lying  Witness. 

§122 

114. 

The  Flippant  Witness. 

123 

115. 

The  Dogged  Witness. 

124 

116. 

The  Hesitating  Witness. 

125 

117. 

The  Nervous  Witness. 

126 

118. 

The  Cunning  Witness. 

119. 

The  Witness  Partly  True  and 
Partly  False. 

127 

120. 

The  Stupid  Witness. 

128 

121. 

The  Semi-Professional  Wit- 
ness. 

129 

The  Official  Witness. 
The  Policeman  as  a  Witness. 
The  Truthful  Witness. 
The  Convict  as  a  Witness. 
The  Private  Detective  as  a 

Witness. 
The  Handwriting  Expert  as 

a  Witness. 
The  Medical  Witness. 
The  Vanity  of  Witnesses.     . 


§  113.  The  Lying  Witness.  —  A  witness  whose  evi- 
dence is  untrue  must  lie  with  wonderful  skill  if  he 
go  through  even  his  examination  in  chief  without 
betraying  himself.  He  is  the  easiest  of  all  to  dis- 
pose of,  and  once  discovered  to  the  jury  in  his 
true  character,  will  do  more  harm  to  a  cause  than 
half  a  dozen  truthful  witnesses  will  undo. 

In  most  cases,  if  the  cross-examiner  has  had 
any  experience,  he  will  be  able  to  refute  his  state- 
ments by  his  own  lips.  The  witness  comes  up  with 
a  well-concocted  story,  and  tells  it  glibly  enough. 
Now,  it  is  well  known  that  events  in  this  world  take 
place  in  connection  with  or  in  relation  to  other 
events.  An  isolated  event  is  impossible.  The  story 
the  witness  tells  is  made  up  of  facts  which,  if 
true,  fit  in  with  a  great  many  other  facts,  and  could 


CLASSES  OF  WITNESSES.  125 

not  have  happened  without  causing  other  facts  or 
influencing  them.  If  his  story  be  untrue,  the  mat- 
ters he  speaks  of  will  not  fit  in  with  surrounding  cir- 
cumstances in  all  their  details,  however  skillful  the 
arrangement  may  be. 

In  cross-examining  such  a  witness,  or  a  witness 
who  lies,  the  advocate  must  therefore  apply  the  test 
of  surrounding  circumstances,  and  compare  his  tes- 
timony with  that  of  other  witnesses.  The  latter 
will  be  the  severest  and  the  surest  test  if  the  cross- 
examiner  apply  it  to  the  smaller  details.  It  need 
hardly  be  said  that,  the  greater  the  number  of  wit- 
nesses to  prove  a  concocted  stor}^,  the  greater  the 
certainty  of  exposure  by  a  skillful  cross-examiner. 
The  main  facts  of  a  story  may  be  so  contrived  as  to 
be  spoken  to  by  all  the  witnesses;  but  they  cannot 
agree  upon  details  which  never  occurred  to  them,  or 
concoct  answers  to  questions  which  they  have  no 
conception  of.  But  even  in  this  mode  of  cross 
examination  the  advocate  must  be  careful  not  to 
obtain  an  apparent  corroboration  where  he  seeks  con- 
tradiction. The  way  to  avoid  this  is  not  to  put  the 
same  question  upon  some  important  piece  of  evidence  to 
every  witness.  If  the  cross-examiner  has  gotten  the 
first  contradicted  by  the  second,  he  should  let  the 
matter  rest;  the  next  witness  may  make  a  guess  and 
corroborate  the  first,  which  will  materially  weaken 
the  effect  of  the  contradiction.^ 


1  It  was  the  great  complaint  of  Brougham,  in  Queen  Caroline's  trial, 
that  the  story  was  so  well  concocted  that  two  witnesses  were  never 
called  upon  one  important  fact.  This,  of  course,  was  contrived  so  that 
there  should  be  no  possibility  of  contradiction.  It  is  not  dlfllcult,  if 
there  are  several  witnesses  telling  an  untrue  story,  to  breali  tliem  down 
in  cross-examination;  and  one  of  the  best  instances  is  that  narrated  in 
the  story  of  Susannah  and  the  elders.  This  example  of  cross-examina- 
tion further  shows  how  necessary  it  is  that  the  other  witnesses  should 


126  AMERICAN  ADVOCACY.  ' 

It  is  when  the  cross-examiner  has  to  deal  with 
an  untruthful  witness  who  speaks  only  to  one  set  of 
facts,  and  stands  alone  with  regard  to  that  evidence, 
that  his  skill  is  put  to  the  test.  How  is  he  to  shake 
his  testimony?  Assuming  that  character  is  not  alto- 
gether out  of  the  question,  he  will  first  ascertain  who 
he  is,  and  upon  this  point  he  may  not  be  touched.  If 
the  witness  is  a  man  of  bad  character  (that  he  has 
been  convicted,  say),  the  advocate's  task  will  be 
comparatively  easy.  He  may  so  unskillfully  put  his 
question  as  to  evoke  sympathy  on  behalf  of  the  wit- 
ness instead  of  contempt;  whereas,  if  his  questions 
are  well  asked  he  may  not  only  show  that  he  is  not 
to  be  believed  on  account  of  his  previous  character  ^ 
but  also  on  the  ground  that  his  mode  of  answering 
condemns  him  as  a  false  witness.  If  the  cross-exam- 
iner shows  at  once  that  he  knows  all  about  him,  he 
will  see  that  it  is  useless  to  attempt  to  deceive  him^ 
and  out  will  come  the  answer,  probably  in  a  pathetic 
tone:  "Unfortunately  I  have  been  convicted,  but 
what  has  that  to  do  with  the  case?  Am  I  alwaj'-s  to 
be  told  of  it?"  This  will  enlist  the  sympathy  of  the 
jury  at  once.  If,  however,  from  the  mode  of  putting 
the  question,  the  witness  thinks  the  cross-examiner 
has  some  doubt,  he  will  take  a  different  line,  and 
although  the  mode  of  cross-examination  may  have  led 
him  first  into  a  denial  and  then   driven  him   into  an 


"be  out  of  court"  while  one  is  under  examination.  "For  bringing  to 
light  the  falsehood  of  a  witness,"  says  Whately,  "really  believed  to  be 
mendacious,  the  more  suitable,  or  rather  the  only  suitable  course,  is  to 
forbear  to  express  the  impression  he  has  inspired.  Supposing  his  tale 
clear  of  suspicion,  the  witness  runs  on  his  course  with  fluency  till  he  is 
entangled  in  some  inextricable  contradiction  at  variance  with  other 
parts  of  his  own  story,  or  with  facts  notorious  in  themselves,  or  estab- 
lished by  proofs  from  other  sources." 


CLASSES  OF  WITNESSES.  127 

admission,  the  fault  will  be  his  and  not  the  advo- 
•cate's.     He  shpuld  have  told  the  trut  hat  the  onset.^ 

If  the  advocate  knows  nothing  to  character  he  must 
proceed  to  test  him  by  surrounding  circumstances, 
leading  the  witness  on  and  on,  until,  encouraged  by 
his  apparent  success,  he  will  soon  tell  more  than  he 
can  reconcile,  either  with  fact  or  with  the  imagina- 
tion of  the  jury.^ 

A  mile  with  him  will  become  three  if  he  is  led  to 
think  the  object  is  to  make  it  less.  Darkness  will 
become  "light  as  day,"  and  the  moon  will  shine  with 
the  utmost  splendor  when,  according  to  the  almanac, 
she  is  nowhere.  It  is  impossible  to  tell  how  far  the 
downright  liar  will  go  if  only  given  a  little  encourage- 
ment. Let  him  exaggerate  and  color  to  the  full  ex- 
tent of  his  inclination  or  imagination,  and  when  he 


1  If  an  advocate  ask  such  a  witness  how  many  times  he  has  been 
convicted,  he  will  not  deny  having  been  convicted,  but  will  answer: 
*'I  don't  know."  If,  however,  he  asks  him  if  he  has  ever  been  in 
trouble,  he  will  hesitate,  and  say,  "No,"  and  then  "Once,"  thinking 
the  cross-examiner  is  only  acquainted  with  his  last  escapade. 

*  At  a  trial  at  Warwick  some  years  ago  a  remarkably  well-planned 
<tlibi  was  set  up.  The  charge  against  the  prisoner  was  burglary.  An 
Irish  witness  was  called  for  the  defense,  and  stated  that  at  the  time  the 
burglary  was  committed  the  prisoner  was  with  him  and  four  or  Ave 
other  persons  some  miles  from  the  scene  of  the  crime.  The  time,  of 
course,  was  a  material  element  in  the  case,  and  the  witness  was  asked 
how  he  fixed  the  exact  time.  He  said  there  was  a  clock  in  the  room 
where  he  and  the  prisoner  were,  and  that  he  looked  at  It  when  they  went 
In  and  when  they  left.  He  was  then  told  to  look  at  the  clock  in  court 
•and  say  what  time  it  was.  The  witness  stared  vacantly  for  a  considera- 
ble time,  and  then  said  it  was  "such  a  rum  'un  he  couldn't  tell." 

"Can't  you  tell  a  clock?" 

"Shure,  sor,  I  can't  tell  that  'un!" 

What  was  still  more  strange,  the  same  question  was  put  to  every  wit- 
ness, and  there  was  only  one  out  of  some  six  persons  who  could  tell 
what  o'clock  it  was.  And  yet  they  all  swore  to  the  exact  time  deposed  to 
by  the  first  witness  and  repeated  the  answer  as  to  how  they  knew  it. 
Of  course  the  alibi  totally  broke  down,  and  the  prisoner  was  convicted. 


128  AMERKAN   ADVOCACY. 

has  completed  the  picture  every  one  will  see  that  it 
is  a  monstrosity;  in  other  words,  no  one  will  believe 
a  word  he  says.  "A  liar  is  not  to  be  believed  even 
when  he  speaks  the  truth."  It  is  an  old  saying,  but 
will  never  be  so  old  as  to  be  worthless. 

But  the  advocate  maj^  get  an  actor  in  the  box,  who 
for  a  long  time  will  conceal  his  true  character.  He  may 
be  a  man  who  has  a  spite  against  the  plaintiff,  the  de- 
fendant, or  the  prisoner,  as  the  case  may  be.  Or, 
if  none  against  the  parties  to  the  action,  he  may  have 
a  very  strong  feeling  against  some  person  interested  in  the 
result  of  the  case.  This  must  be  ascertained.  It  is  the 
very  point  which  he  will  conceal  if  he  can,  but  it  is 
also  the  very  one  that  must  be  found  out  and 
exposed.  It  will  probably  be  detected  during  the 
examination  in  chief,  if  the  advocate  be  vigilant;  if 
not,  it  must  be  ascertained  in  cross-examination.^ 

It  might  be  here  observed,  that  lohenever  the  cross- 


1  The  advocate  must  bear  in  mind,  while  on  this  subject,  that  if  he 
wants  to  read  a  man's  real  character,  he  must  look  at  his  mouth;  all  the 
other  features  may,  to  a  certain  extent,  be  controlled ;  but  the  mouth 
never  can  be  sufficiently  to  conceal  the  emotions  from  a  quick  observer. 
All  the  passions  manifest  themselves  upon  and  about  the  lips;  and  if  the 
witness  be  suddenly  and  somewhat  sharply  questioned  upon  the  subject 
that  is  most  strongly  operating  upon  his  feelings  and  inducing  his  evi- 
dence, an  involuntary  motion  of  the  mouth  will  be  perceived,  which  will 
instantly  betray  him.  A  beard  even  cannot  altogether  hide  this  wonderj 
ful  index  of  the  mind.  So  if  a  witness'  attention  is  directed  to  those  facts 
in  connection  with  a  case  which  are  suspected  to  have  strongly  roused 
his  feelings  against  the  plaintiff,  defendant,  or  any  other  person  interested 
in  the  proceedings,  the  advocate  will  gather  from  the  involuntary  expres- 
sion of  his  features  whether  he  is  correct  in  his  surmise;  and  what  is  of 
still  greater  importance,  the  jury  will  perceive  it  as  well,  after  the 
cross-examiner  has  followed  up  his  question  by  another  and  another, 
for  ultimately  concealment  will  be  impossible.  This  is  part  of  what  is 
called  ''the  demeanor  of  a  witness."  so  often  spoken  of  as  of  such  in- 
estimable importance  as  one  of  the  test  of  a  witness'  truth  or  charac- 
ter, so  highly  appreciated  and  yet  so  little  understood  in  its  more  subtle 
significance. 


CI.ASSES  OF   WITNESSES.  129 

examiner  has  oncefaU'ly  caught  his  witness^  he  should 
not  sacrijlce  the  advantage  by  exhibiting  him  too  ostenta- 
tiously. Having  obtained  the  answer  wanted,  keep 
it,  and  at  once  go  off  upon  another  point;  otherwise, 
on  repetition,  the  witness  will  qualify  what  he  has 
said,  and  very  likely  unsay  it  altogether  by  sorae 
lying  explanation.^ 

§  114.  The  Flippant  Witness.  —  When  a  witness 
comes  into  the  box  with  yv^hat  is  commonly  called 
a  "knowing"  look,  and  with  a  determined  pose 
of  the  head,  as  though  he  would  say,  "Now,  then, 
Mr.  Counselor,  I'm  your  man,  tackle  me,"  the 
advocate  may  be  sure  he  has  ^fiippant  and  masterful 
being  to  deal  with.  He  has  come  determined  to- 
answer  concisely  and  sharply;  means  to  say  "no" 
and  "yes,"  and  no  more;  always  to  be  accompanied! 
with  a  lateral  nod,  as  much  as  to  say,  "Take  that."* 
But  although  the  masculine  pronoun  has  been  used, 
this  witness  is  very  often  a  female.  She  has  come  to 
show  herself  off  before  her  friends;  she  told  them 
last  night  how  she  would  do  it,  and  feels  quite  equal 
to  "any  counselor  as  ever  wore  a  wig."  I  have  seen 
many  a  counsel  put  down  by  such  a  witness;  a  sharp 
answer,  with  a  spice  of  wit  in  it,  has  turned  the 
young  advocate  into  a  blushing  boy  and  utterly  dis- 
comfited him.  Perhaps  a  laugh  has  been  caused  by 
some  impertinent  observation.  The  best  advice 
under  these  circumstances  is,  first  of  all,  for  the 
advocate  to  make  up  liis  mind  not  to  be  put  down. 
He  must  preserve  the  most  placid  and  unruflded 
demeanor,  and  above  all  things,  never  reply  upon  the 
witness.     To  be  led  into  a  retort,  unless  it  were  an 

'  A  common  liar  of  this  kind,  wlio  lies  without  art,  Is  simply  to  be 
dealt  with  as  the  woodman  splits  up  a  log;  find  a  crack,  belt  ever  so 
Bmall,  place  In  the  wedge  and  drive  it  home,  6m<  never  put  tAc  wedge 
across  the  grain,' 
9 


130  AMERICAN   ADVOCACY. 

absolutely  crushing  one,  would  betray  a  weakness 
and  show  that  the  witness  was  making  the  running. 
To  argue  with  a  witness  is  not  onl}^  to  abandon  the 
cross-examiner's  high  post  of  vantage,  but  to  make 
a  bad  impression  on  the  jury. 

In  dealing  with  this  witness,  an  advocate  should 
carefully  abstain  from  administering  rebukes,  or 
attempting,  "to  put  the  witness  down."  His  object 
should  be  to  keep  her  up  as  much  as  possible,  to 
encourage  that  fine  frenzied  exuberance,  which 
by  and  by  will  most  surely  damage  the  case  she  has 
come  to  serve.  A  little  encouragement  would  be 
of  more  service  than  anything  that  would  tend 
to  dampen  the  ardor  of  this  flippant  fury.  Besides, 
the  advocate  has  opportunity  of  animadverting  upon 
her  evidence  by  and  by,  and  is  then  enabled  to  show 
by  the  contrast  of  a  quiet  manner  with  her  blatant 
and  irrepressible  demeanor  how  utterly  worthless 
her  evidence  is.  The  good  effect  which  anv  portion 
of  it  may  have  produced  will  share  the  condign  fate 
of  the  remainder.' 


1  An  endeavor  will  be  made  to  point  out  the  mode  of  putting  a 
question  in  such  a  case.  The  cross-examiner  should  always  approach 
the  witness  as  if  she  were  a  wild  animal  ready  to  tear  him  if  she  should 
get  near  enough.  Therefore  he  must  circumvent.  The  cross-examiner 
may  be  sure  she  will  never  give  an  answer  that  she  supposes  may  be 
favorable.  This  kind  of  witness  has  been  known  to  become  so  "worked 
up,"  that  at  last  she  has  refused  to  give  an  answer  that  she  may  think 
favorable  even  to  her  own  side,  for  fear  it  may  be  made  use  of  somehow 
by  the  other.  It  is  necessary,  therefore,  to  watch  for  a  fitting  oppor- 
tunity, and  if  the  advocate  allow  her  to  make  some  particularly  good 
hit  against  him  which  causes  a  laugh,    she  will  be  in  an  ecstacy  of 

rtriumph  and  at  his  mercy.  At  the  moment  of  her  triumphant  excite- 
ment will  be  the  time  to  put  the  question;  but  it  must  not  be  done  as 
though  the  cross-examiner  thought  it  a  matter  of  importance,  but 
rather  as  if  he  were  putting  it  for  the  purpose  of  turning  off  the  laugh 
against  him.  While  off  her  guard,  if  the  question  le  well  worded,  the 
answer  will  slide  from  her  flippant  tongue  before  she  has  had  time  to 

ujonsider  its  probable  effect.  But  having  got  it  the  advocate  passes  away 


CLASSES  OF   WITNESSES.  131 

The  advocate  will  have  observedjthat  his  opponent 
has  driven  this  splendid  creature  with  a  bearing- 
rein.  In  cross-examination  he  should  take  that  off 
and  let  her  "have  her  head."  ^'Did  I  understand  you 
to  tell  my  learned  friend''''  so  and  so?  will  be  quite 
sufficient  to  set  her  at  liberty  if  asked  in  a  tone  that 
conveys  the  cross-examiner's  feelingjon  the  subject. 
"I  did  not,''^  with  great  emphasis,  will  be  her  last 
word.  She  will  require  some  bridling  in  re- 
examination after  that. 

^  115.  The  Dogged  Witness. — The  dogged  witness 
is  the  exact  opposite  of  the  one  we  have  just  been 
dealing  with.  He  will  shake  his  head  rather  than 
say  no.  He  seems  always  to  have  the  fear  of  per- 
jury before  his  eyes,  and  to  know  that  if  he'keeps  to 
a  nod  or  a  shake  of  the  head  he  is  safe.  He  is  under 
the  impression  that  damage  the  case  he  must,  what- 
ever he  says.  "A  still  tongue  makes  a  wise  head," 
has  always  been  his  maxim. 

How  is  the  cross-examiner  to  deal  with  him?  If 
he  has  said  nothing  against  his  case  he  should,  of 
course,  leave  him  alone — always^  unless  he  desires  to 
draw  something  from  him  in  its  favor.  If  he  cross- 
examine  at  all,  he  must  beware  'of  letting  him  think 
that  he  has  any  design  of  "catching  him. "  Insinua- 
tion will  help  the  cross-examiner  with  this  witness. 
But  he  should  carefully  avoid  asking  for  too  much  at 
the  time.     lie  should  get  little  answers  to  little  questions, 


from  the  subject  instantly  by  putting  another  question  of  no  importance 
or  lelevancy  whatever.  This  Is  a  hint  suggested  by  repeated  Instances 
in  which  it  was  observed  that  this  mode  was  pursued  by  one  of  the 
greatest  cross-examiners  of  the  present  time.  The  cross-examiner  will 
find  his  advantage  in  the  witness'  triumph.  It  Is,  as  some  one  has  illus- 
trated It,  '-not  unlike  a  fencer  making  an  overreaching  thrust.  Before 
be  can  recover  his  balance  the  adversary  has  delivered  a  well-directed 
blow.'' 


132  AMERICAN   ADVOCACY. 

and  he  will  then  find  as  a  rule  that  answers  are 
strung  together  like  a  row  of  beads  within  the  man; 
and  if  he  draw  gently,  so  as  not  to  break  the  thread, 
they  will  come  with  the  utmost  ease  and  without 
causing  the  patient  the  slightest  pain.  In  fact,  till 
he  hears  the  advocate  sum  up  his  evidence,  he  will 
have  no  idea  of  what  he  has  been  delivered. 

This  witness,  without  being  un  truthful,  is  always  hos- 
tile ;  he  looks  on  the  advocate  as  a  dangerous  man ,  a  sort 
of  spy.  He  will  become  bolder,  however,  as  he  pro- 
ceeds, especially  if  the  cross-examiner  prove  to  him 
that  he  is  by  no  meansi  the  terrible  creature  he  at 
first  thought  him.  And  the  best  way  to  foster  this 
idea  is  to  accustom  him  to  answer.  The  advocate 
should  let  him  see  that  his  questions  are  of  the 
simplest  possible  kind;  even  so  simple  and  so  easily 
answered  that  it  seems  almost  stupid  to  ask  or 
answer  them.  "Of  course,"  he  says  to  one;  "Cer- 
tainV'"  to  another;  "No  doubt  about  that,"  to  a 
third,  and  so  on.'  Presently  the  cross-examiner  slips 
one  in  that  is  neither  "of  course"  nor  "certainl}-," 
and  gets  his  answer.  The  advocate  should  look 
upon  this  witness  as  a  lump  of  human  nature  in  the 
witness-box,  out  of  which  he  may,  by  ingenuity  and 
skill,  extract  something  be  it  ever  so  small,  which 
may  serve  his  purpose;  something,  perhaps,  which 
he  can  find  nowhere  else  in  all  the  case.^ 


1  This  witness  may  be  an  old  man  (generally  is),  and  the  subject  of 
inquiry,  a  right  of  way.  He  may  be  the  "oldest  inhabitant."  What 
are  the  moving  springs  of  human  conduct?  Love  of  justice,  which  he 
has  known  from  a  boy  upwards,  and  his  father  before  him,  as  *^'nght  is 
right  and  icrong  is  no  man's  right."'  Self-approbation,  or  vanity,  concen- 
trated in  him  under  the  form  of  "a  iconderful  memory,''  whicii  has  been 
the  talk  of  the  neighbors  for  years;  the  knowing  more  of  by-gone  times 
than  any  man  or  woman  in  the  place;  Selfishness,  called  by  him  his 
''^uprightedness  and  downstraightedness ;''''    Independence  of    spirit,   "Ae 


CLASSES  OF  WITNESSES.  133 

§  116.  The  Hesitating  Witness. — A  hesitating  wit- 
ness ma}^  be  a  very  cautious  and  truthful  witness,  or 
a  very  great  liar.  The  cross-examiner  will  find  this 
out  before  he  begins  to  cross-examine.  In  most 
cases  the  hesitating  man  is  wondering  what  effect 
the  answer  will  have  upon  the  case,  and  not  what  the 
proper  answer  is.  By  no  means  hurry  this  indi- 
vidual. He  should  be  permitted  to  consider  well  the 
weight  of  his  intended  answer,  and  the  scale  into 
which  it  should  go,  and  in  all  probability  he  will  put 
it  into  the  wrong  one  after  all.  If  he  should,  the 
advocate  should  leave  it  thereby  all  means.  Besides, 
giving  him  plenty  of  time  will  tend  to  confuse 
him — as  confused  he  should  be  if  he  is  not  honest. 
He  cannot  go  on  weighing  and  balancing  answers  with- 
out becoming  bewildered  as  to  their  probable  results. 
At  every  question  he  will  look  up  in  an  oblique  direc- 
tion; his  answer  will  be  in  an  oblique  direction  too.. 
Very  often  he  will  repeat  the  question  to  gain  time. 
Sometimes  he  pretends  not  to  hear,  sometimes  not  to 
know;  all  this  time  he  is  adjusting  his  weights,  and 
in  all  probability  some  of  them  are  false.  But  the 
cross-examination  should  by  no  means  lag;  a  halting 
cross-examination  seldom  goes  far.  Slow  questions 
are  usually  feeble.  With  this  witness  they  should 
be  anked  at  the  ordinary  rate,  or  if  anything,  perhaps 
a  trifle  quicker,  so  that  the  hesitation  may  be  more 
apparent  and  the  blundering  more  complete.    ' 

cares  for  no  man,  a  id  always  paid  one  hundred  cents  on  the  dollar'''' — these 
are  the  vulnerable  points  in  his  armor:  and  if  the  advocate  cannot 
thrust  an  arrow  in  atanyof  these  he  had  better  hang  up  his  bow,  for  he 
will  never  make  a  good  archer.  His  witness  will  answer  anything  if 
the  cross-examiner  appeal  to  his  memory,  or  if  the  question  put  mag- 
nifies his  independence  of  spirit,  or  brings  out  in  all  its  daz/.ling  luster 
that  "uprightedness  and  downstraightedness,"  of  which  exalted  virtue 
he  believes  himself  to  have  been  ever  a  most  distinguished  example,  if 
not  the  actual  discoverer. 


134  AMERICAN  ADVOCACY. 

§  117.  The  Nervous  Witness. — A  nervous  witness  is 
one  of  the  most  difficult  to  deal  with.  The  answers 
either  do  not  come  at  all,  or  they  tumble  out  two  or 
three  at  a  time;  and  then  they  often  come  with  oppo- 
sites  in  close  companionship;  a  "Yes"  and  a  "No" 
together,  while  "I  don't  know"  comes  close  behind. 
"I  believe  so,"  or  "I  don't  think  so,"  is  a  frequent 
answer  with  this  witness.  The  examiner  must  deal 
gently  with  this  curious  specimen  of  human  nature. 
He  is  to  be  encouraged.  It  is  no  use  to  bray  him  in 
a  mortar.  Counsel  often  get  irritable  and  petulant, 
and  ask  such  questions  as:  "Will  you  be  good  enough 
to  explain  to  those  gentlemen  what  you  mean?"  This 
is  bad,  and  "those  gentlemen"  generally  dislike  the 
soft  solder  implied.  Some  counsel  may  not  know  it, 
but  they  injure  their  clients  by  observations  of  this 
kind.  Besides,  the  rebuke  and  the  oblique  flattery 
to  the  jury  do  not  produce  the  eif  ect  of  restoring  the 
witness  to  firmness  or  self-possession.  The  cross- 
examiner  should  deal  as  gently  with  a  weakness  of 
this  kind  as  he  would  with  a  shying  horse.  The 
nervous  witness,  like  all  others,  is  either  to  be  cross- 
examined  or  not;  if  he  be,  the  cross-examiner  must 
do  it  without  driving  him  into  such  a  state  that  his 
answer,  however  favorable,  will  have  no  value  in  the 
eyes  of  the  jury;  and  this  will  surely  be  the  effect  of 
agitating  him  by  petulant  impatience. 

§  118.  The  Cunning  Witness. — The  cunning  witness 
must  be  dealt  with  cunningly.  Humor  would  be 
mere  pastime,  and  straightforward  questioning  out 
of  character  with  him.  But  by  way  of  contrast, 
and  for  that  only,  straightforwardness  may  not  be 
out  of  place  with  the  jury.  Whatever  of  honesty, 
whether  of  appearance^  manner,  tone  or  language, 
contrasts  with  the  vulgar,  self -asserting  and  menda- 
cious acting  of  this  witness  will  tend  to  destroy  him. 


CLASSES  OF   WITNESSES.  135 

Ever}''  one  can  see  that  he  tries  to  appear  what  he  is 
not,  and  that  he  pretends  to  know  a  great  deal  more 
than  he  does.  This  is  the  man  to  show  to  the  jury  in 
his  real  character,  and  they  will  enjoy  the  cross-ex- 
aminer's good-humored  exposure  of  the  cheat.  But 
it  by  no  means  follows  even  then  that  they  will  dis- 
believe him  altogether.  They  will  discount  his  evi- 
dence and,  without  some  corroboration,  attach  little 
weight  to  it.  If  contradicted  by  a  respectable  wit- 
ness or  a  fact,  they  will  discredit  him  altogether. 
The  advocate  will  therefore  assist  him  to  play  his 
own  part,  and  to  be  himself;  he  will  exaggerate  and 
color  in  his  own  vulgar  manner,  utterly  unable  to 
perceive  that  he  is  producing  a  distorted  account 
which  no  one  will  believe. 

§  119.  The  Witness  Partly  True  and  Partly  False.— 
The  }vitnes>i  v)ho  is  partly  true  and  partly  faUe^  without 
hypocrisy,  knowing  that  he  is  giving  color  to  some 
facts,  suppressing  others,  and  adding  little  ones  to 
make  good  measure  for  his  party,  is  the  most  difficult 
of  all  to  deal  with.  The  process  of  separating  the  true 
from  the  false  requires  skill  as  well  as  ingenuity  and 
patience.  •  And  the  cross-examiner  must  bear  in 
mind  that  it  is  not  sufficient  for  him  alone  to  know 
the  nature  and  character  of  the  evidence;  his  task 
will  only  be  half  accomplished  at  this  point.  There 
will  still  remain  the  more  difficult  one  of  exhibiting 
it  to  the  jury  in  the  same  light  and  with  the  same 
aspect  V.  ith  which  it  presents  itself  to  his  own  mind. 
The  jury,  untrained  to  sift  evidence,  will  not  so  read- 
ily detect  imposture  and  deceit  as  he;  nor  will  they 
so  easil}"  distinguish  between  what  is  true  and  what 
is  false  when  the  ingredients  are  mixed  up  cunningly 
in  the  evidence  of  an  artful  witnessof  this  description. 
If,  however,  the  advocate  can  la}'  hold  of  any  one 
part  and  expose  an  iucongruit}^  or  an  incompatibility, 


136  AMERICAN   ADVOCACY. 

he  will  have  accomplished  a  great  deal.  The  cross- 
examiner  must  watch  carefulh^  to  find  out  if  there  be  a 
want  of  assimilation  in  the  parts  of  the  story;  if  there 
be  a  disagreement  between  some  of  the  false  parts 
and  some  of  the  true,  he  must  ascertain  whether  the 
alleged  facts  can  exist  together  and  in  connection 
with  one  another,  and  must  cross-examine  for  causes 
and  effects:  he  will  then  determine  whether  the}^ 
agree  with  the  facts  stated  bj^  other  witnesses. 

§  120.  The  Stupid  Witness. — Another  class  of  wit- 
nesses not  inf  requentl}'  met  with  in  court  is  the  stupid 
witness.  There  are  man}'  kinds  of  stu]Did  witnesses, 
but  the  particular  specimen  to  which  attention  is 
called  is  that  civil  and  agreeable  being  who  agrees 
with  ever3^body  for  fear  of  disagreeing.  He  belongs 
to  no  exalted  rank  in  societj^,  and  is  not  assisted  in 
his  worldly  pursuits  with  a  superabundance  of  the 
highest  intellect.  Now,  if  the  cross-examiner  thinks 
he  has  a  witness  whose  evidence  he  can  mould  to 
anj^  shape  he  likes,  he  thinks  rightly,  as  he  maj^  make 
a  piece  of  dough  into  a  boat,  but  the  important  ques- 
tion is — will  it  swim?  Will  the  evidence,  manipu- 
lated b}^  the  advocate's  utmost  skill,  be  serviceable 
to  his  case?  The  line  to  take  is  not  that  which  leads 
this  kind  of  witness  into  mere  inane  contradictions  of 
all  he  has  said  before.  With  a  sharp  person  this 
would  result  in  the  overthrow  of  the  evidence  alto- 
gether. Not  so,  however,  with  that  of  the  stupid 
witness;  his  evidence  is  essentiall}"  weak,  unsupport- 
able  of  its  own  fiber,  and  if  the  cross-examiner  has 
noticed  carefully  he  will  hgve  seen  how  tenderly  it 
was  drawn  out,  like  the  delicate  haulm  of  the  pea, 
and  how  carefully  it  was  propped  up  with  a  forensic 
stick.  What  he  has  to  do  is  to  take  away  it^  artifi- 
cial support.  It  need  not  be  rooted  up.  It  simply  is 
not  what  it  seems.     Alter  if  s    appearance  and  tend- 


CLASSES  OF   WITNESSES.  137 

ency^  and  the  cross-examiner  will  have  done  enough. 
§  121.  The  Semi-Professional  Witness.  —  Another 
class  of  witnesses  deserving  of  notice  is  that  of  the 
semi-prof esKional.  He  is,  in  fact,  semi-everything. 
He  is  half  religious  and  half  libertine;  half  teetotaler 
and  half  drunkard ;  half  veracious  and  half  liar;  his 
word  is  positive  and  his  respectability  comparative. 
Imagination  might  describe  this  witness  as  a  lean  old 
man,  with  a  high,  narrow  forehead  and  a  much  under- 
hanging  lip,  a  mouth  that  twitches  with  self-import- 
auce  and  an  impatience  of  contradiction.  He  wears 
glasses  that  shut  up,  and  waves  them  with  an  air 
of  consequence  when  he  answers  a  question,  putting 
them  on  and  taking  them  off  with  his  hand  in  front 
of  his  face  when  he  wishes  to  evade  a  question.  How 
will  the  advocate  cross-examine  a  man  who  has  all  the 
goodness  of  the  canting  hypocrite  with  all  the  pre- 
tensions of  the  scientific  witness?  Tenacity  of  opinion 
is  his  weakness.  He  will  sacrifice  truth  itself  rather 
than  give  up  his  opinion.  Let  the  cross-examiner 
drive  him  into  that  net  and  he  has  him  a  safe  captive. 
If  he  attempt  to  show  that  his  opinion  is  valueless 
because  he  has  not  been  articled  to  a  surveyor,  or  is 
otherwise  not  a  regular  professional,  the  advocate 
will  lamentably  fail.  The  jury  always  resent  an  at- 
tack upon  a  man  made  solely  because  his  knowledge 
has  Hot  been  acquired  in  the  orthodox  red-tape  man- 
ner. There  are  almost  sure  to  be  ''self-made"  and 
"self-taught"  men  on  the  jury.  But,  in  whatever  cir- 
cumstances this  individual  may  appear,  if  the  cross- 
examiner  wishes  to  attack  his  knowledge,  he  should 
cross-examine  about  farts^  and  he  will  soon  learn 
whether  the  witness  knows  his  business  or  not.  If 
the  advocate  himself  know  nothing  of  what  he  is 
cross-examining  to,  the  witness  will  beat  him  unmer- 
•cifully  at  every  point;  if  he  do  know  something,  he 


138  AMERICAN   ADVOCACY. 

will  plumb  the  depth  of  the  witness'  scientific  igno- 
rance very  soon. 

§  122.  The  Official  Witness. — A  witness  by  no  means 
of  rare  occurrence  is  the  official  witness.  He  is  a  man 
of  many  callings  and  varied  appearances,  but  is  of  one 
type,  and  not  even  like  any  other. 

He  may  be  a  subordinate  in  the  civil  service,  or  at- 
tached to  a  military  department,  to  the  naval  reserve, 
or,  as  in  the  present  case,  he  maj^  be  an  "officer  of  the 
force."  One  "in  authority"  he  must  be,  and  in  the 
service  of  the  state.  No  mere  offspring  of  a  railway 
company  could  possess  the  air  of  self-importance,  com- 
bined with  ignorance,  which  belongs  to  the  '"''state offi- 
ciaV  An  inexperienced  counsel  must  needs  look 
small  before  such  a  being  as  this;  and,  whatever  may 
be  his  mode  of  attack,  yonder  human  citadel  has  sur- 
vived similar  assaults  and  is  i)repared  to  stand  a  siege 
of  questions  from  the  oldest  veteran  in  the  field.  The 
mode  which  the  official  witness  adopts  to  defeat  the 
cross-examination  of  a  young  advocate  is  to  fall 
upon  him  with  all  the  weight  of  his  official  arrogance- 
Brusque  and  loud  as  the  tone  of  a  drill  sergeant  to  an 
awkward  squad  are  the  answers  he  throws  at  the  in- 
experienced advocate;  and  every  time  this  crushing 
force  has  been  exercised  the  huge  mass  of  authority 
lifts  up  its  head  above  the  official  cravat  and  pofees 
itself  with  a  well-defined  expression  of  "I  am  ready 
for  you  again,  if  you  require  any  more,  sir." 

How  to  cross-examine  this  gentleman  is  the  ques- 
tion. To  which  we  answer:  The  largest  balloon  will 
burst  if  too  much  gas  is  forced  into  it.  Self -inflated 
with  the  responsibilities  of  his  office,  the  advocate 
may  increase  him  more  and  more  until  the  domineer- 
ing ascendancy  in  the  witness-box  will  be  an  indica- 
tion of  the  domineering  arrogance  he  would  exercise 
over  a  prisoner.     The  cross-examiner  will  make  him 


,  CLASSES  OF  WITNESSES.  13^ 

writhe  by  appearing  to  dispute  his  evidence,  and  will 
intoxicate  him  with  his  self-importance  if  he  admin- 
isters it  in  suitable  doses.  When  he  becomes  too  great 
for  the  witness-box  the  jury  will  see  that  he  is  out  of 
proportion,  and  when  he  most  protests  by  his  manner 
that  he  ought  to  be  believed  without  question  the  jury 
will  most  distrust  him,  always  supposing  that  he  has 
to  rely  upon  the  strength  of  his  own  veracity,  which 
is  not  very  great. 

§  123.  The  Policeman  as  a  Witness.  —  Every  one 
who  conducts  a  defense  in  a  criminal  trial  has  to  deal 
with  police  testimony,  and  as  a  class  of  evidence  it 
figures  more  conspicuously  in  criminal  courts  than 
any  other.  Again,  it  is  to  be  said,  as  far  as  possible 
leave  them  alone.  They  are  dangerous  persons. 
They  are  professional  witnesses^  and  in  a  sense  that 
no  other  class  of  witnesses  can  be  said  to  be.  Their 
answers  generally  may  be  said  to  be  stereo tyi>ed. 
All  the  ordinary  questions  have  been  answered 
scores  of  times  by  the  well-disciplined  "active  and 
intelligent  officer."  Without  accusing  him  even  by 
implication  of  having  no  reverence  for  the  sanctity 
of  an  oath,  it  must  be  said  that  if  he  sees  the  drift 
of  the  cross-examiner's  questions,  the  chances  are 
against  getting  the  answers  wanted.  He  thinks  it 
his  duty  to  baffle  the  prisoner's  advocate. 

To  be  effective  with  the  policeman  the  cross- 
examiner's  questions  must  be  rapidly  put.  Al- 
though he  has  a  trained  mind  for  the  witness-box, 
it  is  trained  in  a  very  narrow  groove;  it  moves  as 
he  himself  moves,  slowly  and  ponderously  along  its 
particular  beat;  it  travels  slowly  because  of  its 
discipline,  and  is  by  no  means  able  to  keep  ])jice 
with  the  advocate's,  or  ought  not  to  be.  The  latter 
should  not  permit  him  to  trace  the  connection 
between  one  question  and  another  when  he  desires 


140  AMERICAN   ADVOCACY. 

that  he  should  not  do  so.  If  the  cross-examiner 
ask  him  whether  it  was  a  very  dark  night,  and  the 
darkness  has  nothing  whatever  to  do  with  the 
issue,  he  will  commence  a  process  of  reasoning 
(invented  at  Scotland  Yard)  as  to  the  motive  of 
the  question  and  what  might  possibly  be  the  effect 
of  his  answer.  While  this  mental  exertion  is  going 
on,  he  should  be  interrupted  suddenly  with  a  ques- 
tion the  advocate  has  good  reason  for  putting,  and 
in  all  probability  he  will  get  something  near  the 
answer  he  requires. 

Policemen  have  a  great  deal  of  knowledge  about 
the  case  and  a  great  deal  of  belief.  The  former  will 
be  found  bad  enough  to  deal  with,  but  the  cross- 
examiner  must  be  careful  not  to  elicit  a  large 
quantity  of  the  latter;  if  he  does,  he  may  rest 
assured  it  will  look  so  like  fact  that  it  will  pass  with 
the  jury  as  such.^  Furthermore,  it  is  dangerous  to 
put  "fishing"  questions  to  this  class  of  witness.  The 
cross-examiner  is  almost  sure  to  catch  the  wrong 
answer.  His  safer  course  will  be  to  cross-examine 
for  contradictions  and  improbabilities,  not  forgetting 
where  necessary  to  give  the  witness  the  opportunity 
of  denying  anything  upon  which  he  intends  to  con- 
tradict him.  Cross-examine  for  prejudices,  and  as 
to  opportunities  it  should  be  remembered  always 
that  there  is  often  as  much  in  the  manner  as  in  the 
matter  of  CT'oss-examination,  and  much  more  at  times 
in  silence  than  in  both.     The  police  constable  is  not 


1  "What  did  you  say  when  you  apprehended  the  prisoner?*'  asks 
Jones,  eager  for  the  display  of  his  severe  ability  in  cross-examination. 

"Oh  I"  says  the  active  and  intelligent,  "I  forgot  that.'' 

"I  beg  your  pardon.  I  said:  'Now  Sykes,  when  you  come  out  from 
doin' the  last  seven  year,  you  told  me  you  meant  to  turn  over  a  new 
leaf,  and  'ere  you  are  again.'  " 

And  there  the  learned  counsel  was  again! 


CLASSES  OF   WITNESSES.  141 

below  human  nature  generally.  The  parent  of  many 
of  his  faults  is  the  fact  that  subordinate  judges,  as  a 
rule,  think  he  must  be  protected  hy  an  impUcit  belief 
in  his  veracity.  As  a  natural  consequence  he  falls 
into  the  error  of  believing,  in  his  own  infallibility. 

§  124.  The  Truthful  Witness.— The  truthful  wit- 
ness has  been  said  to  be  the  most  difficult  of  all  to 
cross-examine.  On  the  contrary,  however,  he  is  the 
easiest  of  any.  By  the  term  truthful,  it  is  not  intended 
to  be  implied  that  the  evidence  of  the  witness  is  ne- 
cessaril}^  true.  If  it  were  so,  it  would  be  idle  to  cross- 
examine  at  all.  By  a  truthiul  witness  is  meant  one 
who  believes  and  intends  his  evidence  to  be  true.  He 
is  the  easiest  to  deal  with,  because  he  does  not  equiv- 
ocate or  prevaricate.  He  has  no  secret  meaning,  and 
gives  his  answers  readily  and  without  mental 
reserve.  He  desires  to  tell  all  he  knows,  and  his 
credibility  is  unimpeachable. 

The  first  thing  to  ascertain  in  cross-examining  a 
witness  of  this  class,  is  whether  he  has  any  strong 
bias  ov  prejudice  in  the  matter  under  inquiry.  One 
or  two  carefully  worded  questions  will  discover  this, 
if  the  cross-examiner  has  not  already  learned  this 
from  his  answers  in  chief.  Suppose,  for  example,  he 
is  a  clergymarl,  and  the  question  is  as  to  a  certain 
place  of  entertainment  being  a  nuisance  either  as 
being  badly  conducted  or  conducing  to  immorality. 
He  tells  truthfully  enough  what  he  has  seen,  and 
speaks  with  indignant  or  pathetic  tones  of  the  vicious 
example  to  the  inhabitants  of  the  neighborhood.  In 
his  evidence  in  chief  he  will  speak  in  general  terms, 
probably,  and  not  descend  to  particular  instances; 
i3Ut  the  advocate  will  learn,  by  closely  watching, 
whether  he  has  any  particular  examples  of  debauch- 
ery or  profligacy  to  depose  to.  Of  course  he  is  not  to 
draw  these  from  him  if  he  have  any;  this,  of  course, 


142  AMERICAN   ADVOCACY. 

he  will  carefully  avoid,  but  if  the  witness  has  not 
referred  to  particular  instances,  the  cross-examiner 
may  safely  proceed  to  lead  him  to  condemn  all  places 
of  public  amusement  of  a  similar  kind.  If  he  leads 
him  gently  he  will  follow  with  remarkable  docility. 
This  course  has  been  pursued  by  eminent  advocates 
with  great  success.  A  man  who  condemns  all  alike 
is  not  the  witness  to  impress  a  jury  with  the  value  of 
his  evidence  in  the  particular  instance,  especially 
where  it  is  far  more  a  matter  of  opinion  than  fact. 

§  125.  The  Convict  as  a  Witness. — It  is  by  no  means 
unnecessary  to  say  that  if  a  convict  comes  into  the 
witness-box,  it  is  idle  to  attack  his  credit  through  his 
character.  Every  young  advocate  thinks  there  is  such 
an  opening  here,  and  the  temptation  is  doubtless  great. 
But  there  is  no  need  to  attack  when  the  fortress  has 
surrendered.  The  man  stands  confessedly  as  bad  as 
bad  can  be;  and  to  carry  him  through  all  the  scenes 
of  his  profligacy  and  crimes  would  be  but  gratuitous 
cruelty,  and  would  have  no  effect  with  the  jury  except 
in  creating  some  amount  of  sympathy  on  his  behalf. 
They  know  well  enough  how  to  discount  the  evidence 
of  so  abandoned  a  man;  but  they  know,  too,  (and  that 
is  the  point  to  remember)  that  the  most  detestable 
villain  is  yet  capable  of  telling  the  truth.  A  convict 
will  sometimes  defeat  a  cross-examining  counsel  to 
such  an  extent  that  he  will  arouse  sympathy  for  him- 
self and  prejudice  against  the  learned  gentleman.  It 
is  the  weakest  remnant  of  a  very  old  style  of  advocacj'' 
to  ask  the  jury,  "Would  you  believe  such  a  villain,  on 
his  oath?"  The  answer  is,  Of  course  they  would,  as 
against  another  villain  not  upon  his  oath,  and  against 
whom  he  is  circumstantially  testifying,  unless  the  ad- 
vocate can  break  down  his  evidence;  the  latter  will  not 
do  that  by  hammering  away  at  his  character.  The 
jury  may  not  like  the  man  any  more  than  does  the  ad- 


CLASSES  OF   WITNESSES.  143 

vocate,  but  they  may  like  the  advocate's  client  less; 
and  between  two  villains,  the  one  in  the  witness-box 
and  the  other  in  the  dock,  as  a  rule,  they  will  lean  to- 
wards the  former;  he,  at  all  events,  is  for  the  state — 
at  present. 

It  is  when  his  motives  lead  him  to  \h!&  falsification 
of  facts ^  and  the  falsification  is  apparent  or  highly 
probable^  that  the  cross-examiner  can  dispose  of  this 
witness.  Then  will  he  be  able  to  take  character,  mo- 
tive, false  or  exaggerated  statements,  contradictions 
and  probabilities  and  throw  them  into  the  scale  against 
the  apparently  truthful  portions  of  his  testimony.  Or 
if  the  advocate  even  go  so  far  as  to  show  improhabill- 
ties  in  his  story ^  the  witness  will  need  much  corrobo- 
ration to  make  it  acceptable  to  the  jury.  They  will 
treat  him  as  they  would  a  knave  in  the  market  whom 
they  should  detect  with  one  or  two  bad  coins  among 
a  handful  of  apparently  good  ones.  They  would  have 
no  dealings  with  him;  not  because  there  were  no  good 
pieces,  but  because  suspicion  attached  to  all.  To  re- 
peat, it  is  testimony  and  not  character  the  cross- 
examiner  must  deal  with  in  this  witness.  Misfortune 
is  misfortune,  whether  it  comes  from  a  too  lavish  ex- 
ercise of  virtue  or  a  crime;  and  cruelty  is  cruelty, 
whether  inflicted  on  saint  or  sinner.  If  the  advocate 
would  succeed  with  a  clever  scoundrel,  he  must  break 
him  down  by  art,  not  by  violence. 

§  126.  The  Private  Detective  as  a  Witness.— The 
private  detective  belongs  i^roperly  to  the  class  of 
professional  witnesses.  And  here,  as  the  converse 
of  the  last,  it  should  be  remembered  that  the  value 
of  this  witness'  testimony  will  be  in  exact  proportion 
to  the  estimate  the  jury  form  of  his  character.  If  it 
be  unimpeachable  for  disinterestedness,  so  much  the 
more  difficult  to  deal  with  in  cross-examination ;  but 
if  the  witness  be  one  who  is  constantly  giving  evi- 


144  AMERICAN   ADVOCACY. 

dence  as  a  part  of  his  professional  duties,  it  will  be 
somewhat  discredited.  What  is  always  being  done 
sometimes  gets  done  mechanically  and  without  any 
mental  influence.^ 

The  office  of  the  private  inquiry  man  is  distasteful 
to  most  people,  but  the  advocate  cannot  well  reach 
him  in  cross-examination  as  to  that.  If  he  shows 
that  he  obtains  his  livelihood  by  getting  up  cases 
and  then  proving  them,  it  will  be  sufficient  for  his 
purpose  without  wounding  his  feelings.  The  cross- 
examiner's  object  is  to  give  a  color  to  his  evidence, 
and  he  may,  by  the  exercise  of  a  little  skill.  The  ab- 
solute positiveness  with  which  this  witness  gives  his 
evidence  is  a  point  in  the  advocate's  favor;  the  im- 
possibility of  his  having  been  mistaken  is  another ; 
simply  because  the  jury  will  not  believe  in  the  infal- 
libility of  a  human  being  in  carnal  matters.  And  if 
the  witness  might  have  been  mistaken  they  will  not 
believe  him  either.  So  that  the  circumstances  under 
which  the  detective  has  made  his  discovery  are  mat- 
ters worthy  of  the  cross-examiner's  skill.  With  him 
suspicion  is  almost  guilt,  and  almost  every  circum- 
stance from  his  point  of  view  is  suspicious.  Once 
assume  a  person's  guilt,  and  the  most  innocent  cir- 
cumstance will  become  invested  with  suspicion; 
many  facts  will  be  unconsciouslj^  exaggerated,  first 
in  the  mind  of  the  witness,  and  then  in  his  evidence: 
suspicion,  in  short,  will  become  facts  and  facts  guilt. 
There  is  no  more  dangerous  class  of  evidence  than 
that  of  the  private  detective,  but  none  that  a  skilf  ull 


\  1  "I  applied,*'  says  one  witness,  "the  usual  tests,  and  found  traces  of 
poison."  No  one  dreamed,  till  the  cross-examination  disclosed  the  fact, 
that  the  traces  loere  introduced  by  the  test  itself.  Some  professional  wit- 
nesses seem  to  have  no  appreciation  of  the  awful  fact  that  they  are 
swearing  away  a  man's  life,  or  his  wife,  or  his  estate.  It's  only  a  mat- 
ter of  science  with  them. 


CLASSES  OF  WITNESSES.  145 

counsel  can  more  easily  demolish,  unless  it  is  sup- 
ported by  independent  testimony. 

§  127.  The  Handwriting  Expert  as  a  Witness. — 
Here  is  the  witness  to  prove  that  the  prisoner  is 
guilty.  "No,  no,"  says  the  expert  to  himself,  "not 
I.  You  have  given  me  specimens  of  handwriting  to 
examine;  I  say  they  are  in  the  handwriting  of  the 
prisoner.  You  say  if  he  wrote  them  he  is  guilty,  and 
so  will  say  the  jury."  Beautiful  distinction,  but  did 
you  happen  to  know  the  probable  effect  of  the  exam- 
ination before  you  made  it,  3Ir.  G nip}} of  Here  is  a 
dangerous  question  when  the  witness  is  watching' 
the  advocate  as  a  doctor  would  the  changing  expres- 
sion on  a  patient's  face,  and  arranging  his  thoughts 
scientifically^  as  he  gracefullj^  toj's  with  his  invalua- 
ble glasses.  The  advocate  must  not  think  he  must 
put  so  important  a  question  in  that  form?  The  wit- 
ness sees  it — seefihl>s  thougJitH  through  it,  as  though  it 
were  a  lens;  sees  his  weakness  through  it.  The 
Cross-examiner  must  as  carefully  conceal  his  mean 
ing  from  this  witness  as  though  he  were  sending  a 
telegram  through  him  to  the  jury  in  cipher,  so  that 
he  should  Jiot  read  it.  The  answer  to  this  question, 
when  properly  put,  may  be  vert/  near  the  foundation 
of  the  croiiH-e.vaniiner'' s  defence.  What  the  advocate 
wants  to  know  is,  nihat  influence  was  at  work  in  his 
mind  u)hich  may  have  led  him  to  a  particular  condumon 
with  reference  to  the  loop  of  a  G  or  the  twist  of  a  Y. 
How  came  he  to  tliink  it  was  like  the  prisoner's?  Did 
he  know  that  a  murder  had  been  committed? 

The  witness  was  not  told,  but  if  he  had  read  of  the 
murder  he  would  know  two  facts:  one  tliat  a  docu-" 
ment  was  left  by  the  murderer  stating  that  someone 
else  had  committed  it;  the  other  that  a  shopman  was 
the  last  person  seen  with  the  deceased;  and  he  would 
know  a  third  fiict  when   the  books    in  which  were 

10 


146  AMERICAN   ADVOCACY. 

entries  made  hy  the  shopman  were  given  into  his 
hands  to  compare  with  t\vQ  fatal  paper.  So  it  is  seen 
the  expert  would  have  no  vague  or  indefinite  idea  of 
what  he  was  about.  That  is  the  first  point  to  estab- 
lish: not  hoiv  long  he  has  been  studying  his  profession. 
The  next  point  to  make  is  as  to  the  mode  of  examina- 
tion by  this  experienced  expert.  And  here  the  ad- 
vocate will  be  amazed  at  the  elaboration  of  the  system 
for  finding  out  nothing,  which  has  been  invented  by 
science.  He,  "first  of  all,"  he  says,  takes  the  ^''un- 
doubted hand  writ  mg  of  the  prisoner's;*'  this  is  one  of 
his  scientific  phrases — "the  undoubted  handwriting 
•of  the  prisoner's;"  and  he  ''''examines  for  'peculiari- 
ties'''^— another.  But  this  is  begging  the  question  at 
once,  are  they  peculiarities?  He  calls  them  so  and 
stamps  them  with  guilt.  ^ 


1  For  iastance,  the  witness  finds  "on  lino  thirteen  of  page  fourteen, 
your  honor,"  nodding  at  the  judge  with  nervous  respect.  "Line  thirteen 
of  page  fourteen*' — 835-8  the  judge,  counting  vigorously — "yes,  I  see; 
I've  got  it."  "Your  honor  will  find" — here  a  sly  look  at  counsel,  as 
much  as  to  say,  now  listen  to  this  revelation — "the  down  stroke  of  the 
F  in  fool  is  at  a  very  remarkable  angle,  an  angle  of  fifty-four  and  a  half. 
Now,  this  angle  occurs  only  about  once  in  fifty-four  aiillions  of  hand- 
writings. Then  I  find  in  looking  at  the  disputed  handwriting  at  page 
four  of  the  day-book,  line  twenty-two,  the  F  in  the  word  foot  has  pre- 
■cisely  the  same  angle  and  the  peculiar  crook,  if  I  may  so  call  it," — 
pauses  as  though  this  powerful  expression  must  elicit  silent  applause. 
The  advocate  should  mark  this  scientific  discovery  and  cross-examine 
upon  it,  because  it  is  totally  inapplicable  and  no  more  a  "crook"  or  a 
peculiarity  than  he  will  find  in  the  handwriting  of  nine  persons  of  the 
prisoner's  class  out  of  ten.  This  is  a  new  symptom,  and  all  new  symp- 
toms are  in  the  cross-examiner's  favor  if  he  can  use  them. 

"If  you  turn,  your  honor,"  s.iys  the  witness,  stooping  down  over  the 
book  and  now  looking  up  at  the  judge,  and  now  looking  down  at  the 
insect  he  has  under  observation;  shaking  nis  glasses  cwice  above  his 
shoulder  with  his  right  hand  as  he  looks  up,  and  pressing  his  book  twice 
with  the  open  palm  of  his  left  as  he  looks  down,  as  if  he  had  just 
•clapped  it  on  a  butterfly;  "if  your  honor  looks  at  the  bottom  line^ 
4)Ut  five  on  page  four  you  will  find  a  remarkable  peculiarity — it's  a  twist 
•list  where  the  F  joints  on  to  the  B,  givinsf  the  F  a  humpbacked  appear- 


CLASSES  OF  WITNESSES.  147 

Here  is  the  cross-examiner's  opportunity.  Once 
show  that  the  prisoner's  life  depends  upon  the  down- 
stroke  of  a  "d"  or  the  upstroke  of  a  "c,"  the  cross- 
ing of  a  "t"  or  the  dot  of  an  "i,"  and  he  will  live. 
There  are  such  things  as  forgeries,  and  forgers  imi- 
tate peculiarities.  Handwriting  is  seldom  to  be  be- 
lieved, even  when  it  speaks  the  truth. 

^  128.  The  Medical  Witness. — With  regard  to  medi- 
cal opinion.  Sir  Alexander  Cockburn  said:  "A  medi- 
cal man  ought  to  he  asked  his  opinion  on  the 
su^^position  only  that  certain  symptoms  existed." 
This  passage  is  quoted  as  authority  for  saying  that 

ance.  (A  psmse.)  Now,  your  honor  will  find  that  dislocation  or  ticist 
of  the  spine  of  the  F  occurs  in  no  less  than  two  places  in  the  undoubted 
handwriting  of  the  prisoner."     (Sensation.) 

Next  comes  a  cross  of  a  T  at  a  very  acute  angle  which  he  finds  in 
other  places  as  well;  then  there  is  the  *■' Convohition  of  the  G.''  ''This 
convolution  occurs  no  less  than  tive  times  in  the  fatal  document  and  five 
times  in  the  book,  a  very  remarkable  coincidence,  your  honor."  This  is 
said  at  an  angle  of  forty- five.  "Next,  your  honor,  there  is  a  capital  I, 
and  I  particularly  call  your  honor's  attention  to  the  perpendicvlarit>i  of 
that  I;  or,  rather,  I  should  say,  to  express  myself  witli  more 
scientific  accuracy,  the  want  of  perpendicularity  of  the  I."  (The 
I  looks  indeed  as  if  it  had  been  out  all  night.)  "Now,  that  ab- 
sence of  perpendicularity  occurs  three  times  in  the  undoubted  hand- 
writing of  the  prisoner,  and  no  less  than  twice  in  the  disputed  hand- 
writing. There  is  next,  your  honor,  at  page  five,  line  seventeen,  an  O 
which  is  made  like  a  semibreve.  Then,  there's  a  J  of  a  very  remarkable 
and  pronounced  kind;  it  will  be  observed  ttiat  the  loop  or  convolution 
is  elonf/ntfd.  This  is  at  page  six,  line  two;  and  it  occurs  twice  in  the 
fatal  document,  and  once  in  the  undoubted  handwriting.  The  next  let- 
ter I  come  to  is  a  W,  which  is  foimd  on  page  seven, Jline  eight  of  the 
day-book,  and  occurs  three  times  in  the  fatal  docuuient.  Your  honor 
will  observe  that  it  is  serrated,  or  (turning  to  the  jury)  like  asair.  (jentle- 
men.  And  that  same  serrated  appearance  is  observable  in  the  M's  of 
the  undoubted  handwriting  of  the  prisoner." 

And  thus  througli  the  alphabet  the  witness  hag  hooks,  crooks, 
crosses,  convolutions,  semibreves.  Iiumpbacks,  dislocations  and  deform- 
ities of  all  sorts,  and  letters  that  look  like  murderers,  burglars  and  other 
disreputable  persons,  with  the  common  hangman  amongst  them.  But 
bring  common  sense  to  bear  upon  it  in  cross-examination:  so  shall  the 
Advocate  reduce  these  exaggerated  peculiarities  to  the  natural  tendency 


148  AMERICAN  ADVOCACY. 

medical  testimony  should  be  based  not  upon  a  mere 
theory  with  a  view  to  fit  in  the  facts  of  a  particular 
case  to  it, [but  that  the  theor37^  should  be  constructed 
from  ihe,  proved  facts.  Given  certain  symptoms,  or 
facts,  the  scientific  opinion  should  be  given  upon 
them,  and  upon  them  only.  A  great  deal  of  what  is 
termed  medical  evidence  is  not  medical  evidence  in 
any  sense- of  the  term,  except  that  it  is  given  by  a 
medical  practitioner:  and  in  the  same  sense  as  a 
woman's  might  be  said  to  be  "female  evidence." 
Much  that  a  scientific  witness  gives  might  be  gi\^n 
as  well  by  an  ordinary  person,  and  very  often  a  great 
deal  better.^ 

of  persons  to  copy  one,  another.  We  are  such  iinitative  creatures  rliat  we 
copy  when  we  do  not  intend  to.  and  often  even  against  our  wills. 

"I  find,"  continues  this  field-marshal  of  pot-hooks  and  hangers, 
"that  there  is  a  remarkable — *" 

Fray  stop  him,  my  learned  friend  I 

"One  mom.^nt,  Mr.  WitncssI** 

"Excuse  me,"  remonstrates  the  man  of  letters,  jerking  his  spectacles 
at  the  presumptuous  coiin.sei. 

"Forgive  me,"  implori-s  the  latter,  "but  what  are  you   looking  af:*" 

"I  a  n  looking  at  the  dsiy-book.  sir." 

"What  part  of  the,;day-book,  sir?" 

"Excuse  me,  sir;  but  if  I  am  not  to  go  on  in  my  own  way.  I  cannot 
go  on  at  all.     Your  honor — " 

But  "your  honor"  is  not  there  to  assist  the  prosecution. 

"Are  you  comparing  the  ;iroiv^rf  hmuhcritinn  of  the  prisoner  in  the 
day-book  with  the  murderer's  papery" 

"I  am  comparing,  sir.  the  entries  in  the  daj'-book  whicii  I  have 
compare!  irith  other  entries,  and  I  find — " 

"You  will  shut  up  that  book,  tlien.  if  you  pleas3."* 

"Really,  sir,  if  I  am  not  to  go  on  in  my  own  way,  I  am  no  use — " 

Judge:  "If  you  are  comparing  entries  not  proved,  with  entries  that 
are  proved,  to  show  that  they  have  similar  characteristics  to  those 
shown  on, the  murderer's  paper,  that  is  not  evidence.''" 

"Then  I  cannot  go  on,  your  honor."  closing  his  book  with  a  bang! 
Shut  up! 

His  evidence  is  accordingly  strvrk  out,  and  all  liis  elaborate  theories 
based  on  imaginary  likenesses  are  dissolved. 

^  "I  discovered  considerable  ecchymosis  under  the  left  orbit,  caused 


CLASSES  OF  WITNESSES.  149 

If  one  looks  at  a  plain  fact  through  the  lens  of  scien- 
tific language  its  shape  usually  becomes  distorted. 
Giving  a  man  a  "black  ej^e"  may  be  considered  a 
trifling  offense,  and  a  jury  might  acquit;  but  impress 
them  with  the  idea  that  the  prisoner  caused  "extrav- 
asation of  blood  under  the  left  orbit,"  and  he  is 
regarded  as  a  monster  of  cruelty  to  whom  no  mercy 
can  be  shown. ^ 

§  129.  The  Vanity  of  Witnesses. — There  are  other 
witnesses,  doubtless,  slightly  varying  in  their  pecu- 
liarities of  disposition  and  temper,  but  these  the 
reader  will  easily  note  from  his  own  observation,  and 
we  doubt  not  will  find,  on  examination,  that  most  of 
them  may  be  included  within  the  classes  enumerated. 

by  extravasation  of  blood  beneath  the  cuticle,"  said  a  young  house 
surgeon  in  case  of  assault. 

Baron  Bramwell :  "I  suppose  you  mean  the  man  had  a  black  eye?" 
Scientilic  Witness:  "Precisely,  my  lord." 

Baron  Bramwell :  "Perhaps  If  you  said  so  in  plain  English, 
those  gentlemen  would  better  understand  you?"  "Precisely,  my  lord," 
answered  the  learned  surgeon,  evidently  delighted  that  the  judge  un- 
derstood his  meaning,  and  accepting  the  rebuke  as  a  compliment. 

'  Apropos  of  the  quickness  with  which  medical  practitioners  some- 
times arrive  at  a  conclusion, here  is  a  case  that  occurred  some  years  ago. 
A  woman  who  had  cohabited  with  a  tradesman  in  a  country  village  sud- 
denly disappeared.  Her  paramour  gave  out  that  she  had  gone  to 
America.  Some  years  after,  a  skeleton  was  found  in  the  garden  of  the 
house  where  she  had  lived.  On  examination  by  a  medical  man  he  at 
once  pronounced  it  to  be  that  of  the  missinfj  woman.  He  formed  this  opin- 
ion from  the  circumstance  that  one  of  the  teetli  was  gone,  and  that  he 
had  extracted  the  corresponding  one  from  the  woman  some  years  be- 
fore. Upon  this  the  prosecution  was  Instituted,  and  the  man  was  coni- 
mltted  for  trial  to  the  assizes.  Fortunately  there  was  time  before  the 
trial  came  on  for  a  further  Investigation  of  the  garden  where  the  skele- 
ton was  found,  and  on  digging  near  the  spot  another  skeleton  was 
discovered,  and  then  another,  and  another;  then  several  more. 
This  threw  some  doubt  upon  the  identitication  of  tlie  bones  in  question, 
and  on  further  in(iuiries  being  made  it  turned  out  that  the  garden  bad 
once  been  a  gypsy  burial-ground.  It  need  scarcely  be  added  that  the 
prosecution,  which  had  been  vigorously  taken  up  by  the  government, 
was  at  once  vigorously  abandoned. 


150  AMERICAN   ADVOCACY. 

But  of  whatever  types  they  may  be,  and  however 
much  thej'  may  differ  from  one  another,  there  is  one 
weakness  which  runs  through  tliem  all,  and  that  is 
vanity.  No  human  being  is  exempt  from  its  influ- 
ence; and  the  only  difference  between  one  man  and 
another  in  this  respect  is  as  to  the  object  of  his 
vanity  and  the  effect  of  it  upon  the  other  attributes 
of  his  nature.  One  man's  vanity  may  impel  him  to. 
aspire  to  a  coronet,  another's  only  to  wear  his  hat  a 
little  on  one  side  and  to  put  his  thumbs  in  the  arm- 
holes  of  his  waistcoat. 


CHAPTER  XII. 


TACT   AND   TACTICS. 


§130.  The  Meaning  and  Value  of 
Tact  and  Tactics  to  the 
Advocate. 

131.  Delicacy  of  the  Proceeding 

to  Impanel  the  Jury. 

132.  Ascertaining  Motives  Tend- 

ing to  Influence  the  Jury. 

133.  Determining    the    Leading 

Point  in  the  Case. 

134.  Proper  and  Improper  Open- 

ings. 

135.  What  Witnesses  Should  be 

Called  and  in  What  Order. 

136.  Superior  Value  of  Oral  Tes- 

timony to  Written  Deposi- 
tions. 

137.  How  to  Take  Care  of    the 

Weak  Point  in  a  Case. 

138.  Admissions  by  Counsel  or 

His  Client. 


§1 39.  Calculating  the  Value  of  the 
Evidence  or  the  Verdict  of 
the  Jury. 

140.  The    Value    of    the    "Last 

Word." 

141.  Adaptation    and    Arrange- 

ment of  the  Evidentiary 
Forces  in  the  Closing  Ad- 
dress. 

142.  The  Court — Overcoming  the 

Pre- Conceptions  of  the 
Judge. 

143.  The  Court — Assuming  tliat 

the  Court  is  Ignorant  of  the 
Law. 

144.  How  to  Meet  an  Unscrupu- 

lous and  Ill-Natured  Op- 
ponent. 

145.  Under  What  Conditions  an 

Advocate  Profits  by  Delay. 

146.  Danger  in  Wandering  from 

the  Main  Point. 


§  130.  The  Meaning  and  Value  of  Tact  and  Tactics 
to  the  Advocate. — Tact  is  defined  by  Webster  us  a 
"sensitive  mental  touch;  the  ready  jwwer  of  ap- 
preciating and  doing  what  is  required  by  circum- 
stances."' 

*  The  following  quotation,  which  we  have  taken  the  liberty  to  alter, 
is  very  pertinent : 

'^For  a  thousand  who  can  speak  there  is  but  one  who  can  think,  for  a 
thousand  who  can  think  there  is  but  one  who  can  see.    The  successful 


152  AMERICAN   ADVOCACV. 

Tact,  as  thus  defined,  is  quite  easily  seen  to  be  a 
very  important  part  of  a  lawyer's  equipment.  Many 
lawyers  of  great  mental  abilit}^  have  been  failures  as 
advocates  because  of  the  lack  of  this  one  quality. 
They  always  manage  to  injure  some  one's  feelings  in 
a  trial;  they  bring  the  jury  and  the  judge  to  regard 
them  unfavorably ;  they  constantly  fail  to  take  ad  vant- 
age of  opportunties;  and  proceed  on  their  ponderous 
way  to  inevitable  defeat.  It  is  sometimes  said  of  an 
advocate— "He  is  not  a  great  lawyer,  but  he  is  a  very 
clever  law  practitioner."  Study  the  methods  of  one 
of  whom  this  statement  can  be  made;  observe  the  skill 
with  which  he  ingratiates  himself  into  the  favor  of 
court  and  jury;  notice  his  gentle  handling  of  a  stub- 
lawyer  has  the  open  vision.  There  is  no  blind  side  to  either  hia  eye  or 
brain.  Watchful  as  a  lynx,  with  every  faculty  of  the  intellect  strongly 
concentrated  upon  the  prospect,  not  a  contingency  escapes  him.  A 
factor  so  subtle  in  its  nature,  so  incomprehensible  in  its  relation  to 
other  elements,  and  so  susceptible  of  marvelous  growth  under  suitable 
conditions  and  by  reason  of  thorough  cultivation,  bafHes  the  English 
language  for  an  abstract  definition.  The  one  word  'tact'  comes  the 
nearest  to  it.  Tact  is  defined  as  the  ready  power  of  appreciating  and 
doing  what  is  required  by  circumstances.  Technically  speaking,  tact 
may  mean  touch,  discrimination,  wisdom  or  skill.  Touch  in  the  sense 
oi  manipulation — 'throwing  out  a  feeler" — discrimination  in  the  sense 
of  a  nice  perception  or  appreciation  of  difference,  drawing  fine  lines, 
winnowing  chaff  from  the  wheat;  wisdom  in  the  sense  of  sagacity, 
grasp  of  intellect,  acuteness.  'having  one's  wits,'  'seeing  through  a 
mill  stone;*  and  skill  in  the  sense  of  expertness,  cleverness,  genius — 
'hitting  the  nail  on  the  head.'  Tact  is  strong  as  Atlas,  graceful  as 
Venus,  fleetfooted  as  Mercury.  He  comprehends  peculiar  situations 
with  a  completeness  that  leaves  out  none  of  the  details.  'Tact  is  the 
eighth  wonder  of  the  world.'  Memory  is  not  tact,  but  tact  never  forgets. 
Perception  is  not  tact,  but  tact  can  see  through  a  brick  wall.  Reason 
Is  not  tact,  but  tact  somehow  always  gets  the  best  of  an  argument. 
Talent  is  not  tact,  but  tact  hasn't  any  folded  in  a  napkin  and  laid 
away.  Genius  is  not  tact,  but  tact  is  most  ingenious.  Learning  is  not 
tact,  bui  tact  is  versed  in  all  the  wisdom  of  the  ages.  Art  is  not  tact, 
but  tact  is  an  artist.  Science  is  not  tact,  but  tact  can  apply  scientific 
principles  to  men  and  things.  Courage  is  not  tact,  but  tact  never 
pales  with  fear  or  hides  his  face  with  cowardice.  Common  sense 
intensified  is  just  anothername  for  tact." 


TACT  AND  TACTICS.  153 

born  witness  until  he  ''worms"  out  of  him  the  answer 
that  he  desires;  watch-  him  as  he  studies  the  coun- 
tenances of  the  opposing  witnesses  on  their  examina- 
tion-in-chief, and  see  his  face  light  up  with  intelligent 
perception  as  he  sees  something  lying  hidden  beneath 
the  outward  show  of  facial  and  verbal  expression ; 
listen  to  him  as,  in  his  clear,  convincing  and  win- 
ning manner,  he  presses  home  his  objection  to  the 
introduction  of  some  damaging  evidence  on  the  part 
of  his  opponent,  or  the  nice  discrimination  with 
which  he  seeks  to  withdraw  some  evidence  which  he 
himself  is  seeking  to  introduce  from  the  effect  of 
some  rule  of  law  which  -would  seem  to  prohibit  its 
introduction.  Let  the  advocate  observe  all  these 
things  and  the  manj^  other  unwritten  incidents  of  a 
trial  in  which  the  tactful  advocate  is  always  able  to 
find  opportunities  to  further  the  cause  of  his  client, 
and  the  student  has  received  'his  first  lesson  in  the 
art  of  legal  tact,  a  lesson  which  he  can  never  hope  to 
learn  out  of  books  nor  under  the  voice  of  the  lecturer. 
Tactics,  though  akin,  is  nevertheless  quite  a  differ- 
ent thing  from  tact.  Tactics  is  defined  by  Webster 
as  "the  success  and  art  of  disposing  military  and 
naval  forces  in  order  for  battle;  and  hence  any  system 
of  procedure."  To  the  advocate  no  general  qualifi- 
cation, next  to  tact,  is  so  necessary  as  a  proper 
system  of  legal  tactics.  Tactics  in  law  relate  to  the 
science  and  art  of  presenting  the  evidence  in  a  mas- 
terful and  convincing  manner.  Sometimes  an  advo- 
cate who  has  a  good  case  will  so  awkwardlj"  present 
his  evidence  as  to  actually  court  defeat;  while,  on  the 
other  hand,  one  with  only  an  indifferent  case  will  so 
arrange  the  forces  that  tell  in  his  favor  that  they 
present  an  almost  irresistible  front.  The  latter 
advocate  has  mastered  the  science  of  legal  tactics. 
How  to  present  a  case,  is  indeed  the  question  uixyn 


154  AMERICAN    ADVOCACY. 

which  the  verdict  will  in  most  cases  probably  turn. 
If  we  examine  the  great  trials,  and  more  especially 
the  speeches  of  the  best  advocates,  it  will  be  found 
that  the  mode  in  which  the  case  was  presented  hid 
much  to  do  with  every  successful  result.  Particu- 
larly is  this  observable  in  the  defenses  of  Ers- 
kine,  whose  advocacy,  in  its  arrangement  and  order, 
was  so  masterful  and  effective. 

As  we  have  already  intimated,  neither  tact  nor  the 
science  of  tactics  can  be  most  directly  learned  from 
stud}^  or  books ;  they  come  rather  from  experience 
andobservation.  What  suggestions  we  offer  here 
are  onl}'^  to  warn  the  advocate  against  the  most  glar- 
ing instances,  of  lack  of  legal  tact  and  the  most  prom- 
inent and  important  rules  in  the  science  of  legal  trial 
taclrics. 

§  131.  Delicacy  of  the  Proceeding  to  Impanel  the 
Jury. — Too  many  advocates  handle  a  jury  as  if  the 
fingers  of  their  minds  were  all  thumbs.  They  are 
rude,  boorish,  insolent  and  overbearing.  In  examin- 
ing the  panel  they  pry  into  a  juror's  private  affairs 
as  if  he  were  a  witness  or  a  party  interested  in  the 
case.  Not  only  the  jurors  thus  examined  but  the 
whole  panel,  if  they  are  men  of  spirit,  will  resent  this 
course  of  the  advocate.  Courtesy  is  an  accomplish- 
ment to  any  man;  but  to  the  advocate  it  is  a  valuable 
asset;  and  nowhere  is  the  lack  of  it  more  painfully 
felt  than  in  the  advocate's  handling  of  the  jury.  In 
the  selection  of  the  jury,  especially,  care  must  be 
taken  to  frame  the  interrogatories  in  such  a  manner 
as  not  to  give  offense  and  to  maintain  throughout  the 
entire  proceeding  an  attitude  of  the  strictest  cour- 
tesy. An  advocate  that  makes  a  favorable  impres- 
sion at  this  early  juncture  has  quite  handicapped  his 
opponent.  Of  course,  it  is  important  to  examine 
jurors,  in  most  cases,  to  find  out  what  interest  they 


TACT  AND  TACTICS.  155 

may  have  in  the  case;  what  knowledge  of  the  facts 
they  may  possess;  what  relationship  any  one  of  them 
may  sustain  to  either  of  the  parties;  what  expres- 
sions of  opinion  may  have  been  uttered  as  to  the 
merits  of  the  case;  what  personal  hostility  may"  exist 
between  any  one  of  them  and  either  of  the  parties  to 
the  case;  and  considerations  of  a  similar  nature.  A 
short  courteous  examination  of  each  member  of  the 
panel  will  generally  be  sufficient  to  find  out  all  the 
advocate  desires  to  know.  Much  information,  it  must 
be  understood,  will  come  to  the  advocate  by  way  of 
careful  observation. 

Sometimes  the  nature  of  the  case  is  such  that  the 
advocate  has  learned  sufficient  from  his  opponent's 
investigation  to  satisfy  him.  In  such  case  it  is  good 
policy  to  waive  examination.  It  is  alwaj'^s  a  delicate 
proceeding  at  best. 

After  the  advocate  has  completed  his  examination 
the  exercise  of  his  right  to  make  a  certain  number  of 
peremptory  challenges  is  a  matter,  sometimes,  which 
demands  an  intimate  knowledge  of  human  nature. 
The  advocate  must  keep  off  from  the  jur}^  in  his  case 
any  man  whose  business,  religion,  or  crankish  no- 
tions of  things  would  influence  his  judgment  on 
the  particular  Yacts  involved.  In  damagfe  suits,  for 
instance,  of  servants  against  master,  care  must  be 
taken  to  exclude  any  large  emi^loj'ers  of  labor.  So, 
also,  in  suits  involving  the  enforcement  of  the  liquor 
laws,  enthusiasts  in  the  cause  of  prohibition  must 
be  challenged  on  the  one  side  and  anyone  engaged  di- 
rectly or  indirectly  in  the  manufacture  or  sale  of 
liquor  on  the  other.  These  are  two  prominent  in- 
stances; others  requiring  a  more  delicate  apprecia- 
tion of  human  nature  will  occur  to  the  advocate  who 
closely  studies  the  situation  and  has  a  fair  measure 
of  common  sense. 


156  AMERICAN  ADVOCACY. 

jj  132.  Ascertaining  Motives  Tending  to  Influence  the 

Jury. — It  should  alwaj^s  be  remembered  that  one  of 
the  most  difficult  things  in  advocacy  is  to  ascertain 
the  motives  which  influence  human  conduct,  and  3'et 
these  motives  are  in  a  great  measure  the  advocate's 
g'uides.  Unless  these  can  be  discovered  the  advocate 
will  be  working  in  the  dark  and  will  only  succeed,  if 
at  all,  by  accident.  If  we  could  look  into  the  minds 
of  the  twelve  jurymen  we  should  probably  find  as 
many  reasons  for  their  verdict.  One  was  predis- 
posed to  believe  a  particular  witness;  a  second  had 
a  similar  predilection  for  another;  a  third  disbe- 
lieved the  defendant  because  he  did  not  like  "the 
looks  of  him;"  a  fourth  was  rather  taken  with  the 
plaintiff's  manner;  a  fifth  had  heard  something  not 
much  to  the  credit  of  the  party  he  meant  to  find 
against;  and  so  on  until  you  came  to  the  twelfth,  who 
simply  '"''jined  In  like'''  because  he  was  a  man  of  a  very 
agreeable  nature.  Much  may  depend  upon  the 
juror's  breakfast  or  his  digestion.  With  many  juries 
there  is  the  predominating  thought,  in  spite  of  much 
•evidence  to  the  contrary,  that  the  plaintiff  is  e)ititled 
to  something.  Some  think  he  must  be  in  the  right  or 
he  would  never  have  brought  his  action;  as  they 
think  a  prisoner  must  be  guilty  or  he  would  not  be 
■on  his  trial. 

§  133.  Determining  the  Leading  Point  in  the  Case. — 
In  most  cases,  if  not  in  all,  there  is  a  leadhig  point 
which,  if  established,  will  determine  the  verdict. 
Before  the  case  can  be  shaped,  this  point  must  be 
discovered  and  placed  in  exactly  its  right  position.  All 
the  evidence  and  all  the  facts  must  be  subordinated 
to  it.  Sometimes  it  happens  that  a  false  point  usurps 
the  position  of  the  true.  This,  however,  it  need 
scarcely  be  said,  is  fatal  to  the  advocate  who  knows 
so  little  of  his  case.     It  is  possible  to  be  drawn  away 


TACT  AND  TACTICS.  157 

to  a  minor  issue;  but  if  the  advocate  should  be  he  will 
find  it  difficult  to  get  back  to  the  true  one;  and  it  is 
the  surest  sign  that  he  has  never  mastered  the  rudi- 
mentary principles  of  advocacy.  To  the  unpracticed 
genius  this  seems  so  intolerable  a  blunder,  that  no 
one  could  by  possibility  commit  it.  The  unpracticed 
advocate,  however,  is  the  only  one  who  never  makes 
a  mistake.  Advocacy  is  not  so  easy  as  beating  a 
drum;  and  if  all  the  blunders  of  clever  advocates 
were  to  be  told,  the  student  would  come  to  the  con- 
clusion that  practice  makes  us  most  imperfect;  and 
that  the  art  is  more  calculated  to  benumb  the  facul- 
ties than  to  quicken  them. 

§  134.  Proper  and  Improper  Openings. — We  know 
that  a  case  may  be  opened  in  a  variety  of  ways.  The 
direct  way  is  the  nearest  to  the  verdict.  Sufficient 
rhetorical  skill  to  make  the  advocate's  statement 
agreeable,  and  such  an  arrangement  of  his  evidence 
as  to  make  the  matters  alleged  •  mem  true,  are  the 
characteristics  of  a  masterful  opening.  To  get  the 
jury  to  accept  his  interpretation  of  the  case  depends 
almost,  entirely  on  his  mode  of  putting  it;  this  is 
the  effect  produced  by  harmonizing  evidence  and 
making  his  allegations  look  like  actual  facts;  an 
artist  would  say — herein  consists  the  art  of  mixing 
colors.  What  the  advocate  requires  is  to  get  it  into  the 
minds  of  the  jury  ///  n\u'h  order  as  to  m<(ke  the  ronc/fi- 
slon  c/ear/f/  dediicible  from  the  fartv.  For  instance: 
what  would  be  the  use  of  cross-examining  to  the 
credit  of  a  witness  when  the  facts  he  lias  spoken  to 
have  been  proven  by  pei'sons  of  unimpeiichable  char- 
acter. The  advocate  may  be  as  "severe"  and  "pow- 
erful" with  him  as  he  likes,  but  the  jury  will  think 
he  is  ruining  the  case.  Severity  is  not  power,  and 
power  is  seldom  severe.  But  suppose  the  advo- 
cate   to    be    judicious,    and    to  refuse  to  turn  him 


158  AMERICAN   ADVOCACY. 

inside  out.  He  will  perhaps  endeavor  to  do  sorae- 
thing  more  artistic  with  him.  He  is  a  witness  vouched 
for  by  the  other  side  as  ivorthy  of  credit:  Any  answer 
the  advocate  can  get  from  him  which  will  damage  the 
evidence  of  the  other  witnesses  will  be  of  immense 
value.  He  can  take  him  into  his  confidence  on  ac- 
count of  that  character  which  he  is  instructed  to 
expose.  His  manner  of  handling  him  is  part  of  the 
tactics  of  advocacy,  and,  according  as  it  is  concilia- 
tory or  severe,  he  will  make  him  a  witness  for  or 
against  him. 

There  is  one  mode  of  presenting  a  case  which  is 
pretty  sure  to  ruin  it — the  jocular  mode.  An  advo- 
cate who  begins  by  playing  the  fool  is  almost  sure 
to  end  in  making  one  of  his  client.  Jokes  are  not  of 
much  value  to  the  plaintiff,  unless  he  wants  laughter 
instead  of  damages;  while,  on  the  part  of  the  defend- 
ant, they  are  a  poor  answer  to  facts.  Laughing  a 
ease  out  of  court  has  been  often  heard  of,  but  never 
accomplished.  No  judge  would  permit  it  unless  he 
preferred  a  joke  to  justice,  and  a  jury  has  never  been 
known  to  laugh  away  a  litigant's  rights.  True,  the 
advocate  may  laugh  his  own  case  out  of  court  very 
easily;  and  if  he  have  no  case  he  may  as  well  dismiss  it 
with  laughter  as  with  tears — as  a  bad  soldier  is  drum- 
med out  of  the  regiment;  nevertheless,  the  drumming 
ought  not  to  be  the  cause  of  the  dismissal.  These 
remarks,  however,  are  by  no  means  intended  to 
detract  from  the  value  of  humor,  the  efficacy  of  which 
has  been  elsewhere  considered. 

Again,  it  should  be  observed  that  seriousness  need 
not  be  sepulchral.  It  is  in  finding  the  unaffected 
medium  between  these  extravagances  of  style  that 
this  branch  of  the  art  of  advocacy  consists.  The 
advocate  need  not  proceed  as  if  he  were  moving  to 
muffled  drums  and  the  Dead  March;  the  jur}^  like  a 


TACT  AND  TACTICS.  159 

brisk  pace  and  a  lively  air.  The  advocate  should 
keep  them  in  o-ood  spirits,  if  he  wants  ^'ood  damages. 
Recollect  they  are  not  being  asked  to  give  their  own 
money  away,  but  other  people's,  and  the  livelier  he 
<?an  keep  them,  the  more  generous  are  they  likel}''  to 
be;  damages  are  often  increased  because  the  jury  are 
taken  with  the  advocate's  manuer. 

§  135.  What  .Witnesses  Should  be  Called  and  in  What 
Order. — Another  matter  is  worthy  of  attention. 
Advocates  are  often  perplexed  with  the  question, 
'"''Shall  loe  call  witnesses  f  In  the  first  place,  it  is  a 
•question  which  the  counsel  should  take  into  his  own 
hands.  No  solicitor  can  answer  it  for  him.  He  can 
but  give  him  the  evidence  upon  which,  in  his  dis- 
cretion, the  advocate  must  decide.  Nor  must  he  in 
the  least  fear  the  too  frequent  lamentation,  "If  we 
had  only  called  our  witnesses!"  But  the  true  test 
is  unmistakable: — Are  they  necessary f  If  not,  he 
:should  never  sacrifice  the  reply.  There  is  a  further 
consideration,  even  if  they  may  be  useful,  but  not 
altogether  necessary,  what  will  be  the  value  of  the 
witnesses  under  cross-examimitlon?  They  may  look 
very  well  on  paper,  and  put  the  advocate  out  of  court 
in  the  witness-box.  He  is  always  in  danger  from  his 
•own  witnesses,  especially  if  he  have  more  than 
enough.  As  a  general  rule,  they  are  worthless  when 
the  question  is  debatable  as  to  whether  he  should 
'Call  them   or  not. 

But  if  called,  does  it  matter  as  to  the  order  in  which 
their  evidence  is  given?  It  matters  much  in  every 
way.  The  advocate  may  lose  the  verdict  through  a 
want  of  connection  and  sequence.  Things  present 
a  vastly  different  appearance  when  thej''  are  orderly 
-arranged,  and  when  they  are  in  confusion.  The  best 
rule,  of  course,  is  for  the  advocate  to  call  his  wit- 
nesses in  such  order  that  their  evidence  will  produce 


160  AMERICAN  ADVOCACY. 

the  best  effect  upon  the  jur^^  To  do  this  he  must 
adjust  the  parts,  even  the  minutest,  with  a  view  to 
the  general  design. 

This,  too,  may  be  taken  for  granted,  when  a  cUent 
is  alleged  to  have  committed  a  wrong,  or  to  have 
done  something  which  it  is  necessarj^  to  disprove; 
not  only  should  he  be  the  advocate's  first  vntness^  but 
his  denial  should  come  at  the  earliest  moment  in  his  evi- 
dence. Delay  will  look  like  reluctance,  and  reluctance 
like  guilt.  Whatever  is  the  main  point  in  the  advo- 
cate's case  as  a  rule,  should  be  placed  in  the  fore- 
front by  the  principal  person  concerned.  The  rea- 
son is  obvious;  the  impression  being  made  at  the 
earliest  moment,  the  effect  will  be  greater  and  more 
enduring,  as  farther  removed  from  the  immediate 
attack. 

The  "order  of  time"  has  been  referred  to  in  a  pre- 
vious chapter,  as  a  matter  of  importance;  the  order  of 
value  is  of  no  less  moment.  After  the  leading  fact 
has  been  placed  in  its  central  position,  the  witnesses 
should  be  called,  so  as  not  onlj^  to  confirm  it,  but  so- 
that  the  evidence  may  be  self-supporting,  by  its 
compactness  and  completeness,  as  the  parts  of  a 
well-turned  arch  which  no  pressure  can  destroy. 
Nor  should  the  evidence  be  produced  only  with  a 
view  to  the  general  design;  there  is  something  else 
that  can  be  done,  if  you  are  for  the  defendant.  Hav- 
ing observed  the  testimony  given  by  the  other  side, 
the  advocate's  own  evidence  may  be  arranged  not 
only  with  a  view  to  contrast  but  so  that  it  may  seem 
to  he  invested  loith  a  greater  degree  of  probability  than, 
the  opposing  evidence. 

With  regard  to  the  value  of  witnesses,  it  should 
not  be  forgotten  that,  if,  after  the  plaintiff  or  defend- 
ant (as  the  case  may  be),  the  advocate  proceed  to 
call  his  best  witness,  and  then  graduate  them  until 


TACT  AND  TACTICS.  161 

he  comes  to  the  worst,  his  case  will  be  tapered  down 
until  it  will  seem  to  rest  upon  its  weakest  witness. 
The  jury  will  follow  the  course  of  the  evidence  to  it& 
vanishing  point,   and   the  advocate  will  wonder  whjr 
it  had  no  more  effect  than  to  make  them  shake  their- 
heads.     If  the  advocate  call  a  number  of  weak  wit- 
nesses one  after  the  other,  the  jury  will  come  to  the- 
conclusion  that  the  case  is  weak,  and  the  evidence  of 
the  stronger   witnesses  will  be   proportionally  dis-- 
counted;  whereas,  if  he  has  a  number  of  witnesses, 
weak  and  strong,  but  all  necessary,  he  should  lead  off 
with    a    small     witness    from    his    strongest    suit. 
It  may  be  that  the  order  of  time  or  circumstances 
will  decide  as  to  the  next;   but  he  should   always 
endeavor  to  follow  up  weakness  with  strength.' 

Another  point  must  not  be  omitted.  A  stor}^  told 
in  parts  by  different  witnesses  is  stronger  than  the 
same  story  repeated  by  the  whole  of  them.  It  will 
neem  to  be  truer,  and  even  look  a.s  if  it  must  be  true\ 
whereas,  repetition,  especially  in  details,  often  makes 
it  look  as  if  it  must  be  false.  A  further  advantage 
attends  the  divisional  form — there  will  he  lem  surface, 
ex^posed  for  cross-examiruUion. 

^  136.  Superior  Value  of  Oral  Testimony  to  Wrftterr 
Depositions. — As  far  superior  as  a  warm,  affectionate 

'  Let  UB  suppose  the  witnesses  are  pretty  equal  as  to  the  value  of  their 
testimony,  and  that  the  order  of  time  is  not  necessary  to  be  observed; 
is  there  any  reason  why  one  should  be  called  into  the  box  earlier  than: 
another?  Undoubtedly.  They  are  not  all  equalhj  capable  of  rfBiating' 
eroBS-ezamination,  It  the  advocate  take  one  of  the  worst  in  this  respect' 
before  the  others,  and  be  should  stammer  from  nervousness,  or  give  the 
wrong  answer  from  misunderstanding,  the  examiner  has  done  at  leasC 
two  bad  things  for  bis  client;  he  will  pretty  nearly  have  ruined  his  case 
with  the  jtiry;  and  be  will  have  put  so  much  heart  into  his  adversary 
that  he  will  cross-examine  the  rest  with  renewed  vigor;  whereas,  if  he 
put  a  witness  into  the  box  who  can  stand  the  cross-examination,  th» 
contrary  effects  will  be  produced.  Nothing  is  more  disheartening  tbaa 
failure  in  cross-ezaminalion,  except  failure  in  resisting  It. 
11 


162  AMERICAN  ADVOCACY, 

embrace  is  to  a  cold  and  formal  introduction,  so  far 
superior  are  the  burning  words  of  an  oral  testimony 
to  the  cold  black  type  of  a  written  or  printed  deposi- 
tion. An  advocate  makes  a  great  mistake  to  intro- 
duce the  deposition  of  anj^  important  witness  whom 
he  might,  by  any  possible  means,  have  at  the  trial. 
Indeed,  in  most  cases,  it  would  be  profitable  even  to 
defray  the  expense  of  a  long  journey  in  order  to  get 
the  witness  into  court  rather  than  to  be  compelled  to 
rely  upon  his  deposition.  The  reasons  for  this  are 
obvious.  In  the  first  place,  testimonj^  b}^  deposition 
:is  lifeless;  it  lacks  that  fire,  that  spontaneity,  that 
impulsive  iteration  of  oral  testimony  which  often 
compels  belief.  In  the  second  place,  jurors  are  gen- 
erally suspicious  of  such  testimony;  they  are  not 
.aware  of  the  auspices  under  which  it  was  given,  and 
^re  inclined  to  the  opinion,  and  not  always  unjustlj^ 
that  the  answers  to  the  interrogatories  have  been  care- 
fully studied  and  couched  in  language  calculated 
more  to  serve  the  purposes  of  the  party  in  whose  in- 
terest the  witness  testifies  than  the  demands  of  truth 
and  justice.  The  jur}^  feel  also  that  the}^  have  been 
denied  the  opportunitj'  to  "look  the  witness  in  the 
eye"  and  thus,  in  this  very  effective  and  often  con- 
clusive manner,  test  the  credibility  of  the  evidence 
he  offers.  In  the  third  place,  many  important  points 
in  the  testimony  of  the  witness  overlooked  in  theprep- 
.aration  of  interrogatories  are  brought  forcibly  to 
the  mind  of  the  examiner  under  the  stimulus  effected 
by  the  heat  and  vigor  of  the  contest.  From  every 
point  of  view,  therefore,  oral  testimony  is  to  be  pre- 
ferred to  written  depositions.  ^ 

*  The  difference  between  depositions  and  oral  examinations  in  open 
•Courtis  well  stated  by  Blackstone:  "This  open  examination  of  wit- 
nesses, viva  voce,  in  the  presence  of  all  mankind,  is  much  more  condu- 
ujive  to  the  clearing  up  of  truth  than  the  private  and  secret  examination 


TACT  AND  TACTICS.  163 

§  137.  How  to   Take   Care   of  the  Weak  Point  in   a 
Case. — We  must  not  omit  a  matter   which   is  con- 
stantly peeping  out,  however  carefully  it  is  concealed, 
and  that  is  the  weak  point  in   the  advocate's  case; 
there  it  is,  conceal  it  as  he  may.     If  he  wants  it  to 
tell  as  forcibly  against  him  as  it  can,  leave  it  to  the 
mercy  of  the  other  side  to  drag  it  out.     If  he  desire 
it  to  be  presented  in  its  most  favorable  aspect,  intro- 
duce it  himself.     A  man  is  always  tenderer  to  his 
own  faults  than  he  is  to  other  people's.     With  proper 
management  a  weakness  may  sometimes  be  turned 
to  advantage.     A  good   sneer  from  the   advocate's 
opponent  at  the  poverty  or  misfortune  of  his  client, 
will  tend  to  the  solace  of  the  one  and  the  mitigation 
of  the  other.     A  sneer  may  be  the   very  worst  of 
advocacy,  but  that  does  not  prevent  a  bad  advocate 
from  using  it.     Nay,  it  is  no  advocacy  at  all,  it  is 
sheer  unmitigated  abuse;  but  there  are  clients  who 
will  pay  even  for  that.     Endeavors  to  excite  preju- 
dice generally  succeed  in  evoking  sympathy.     Noth- 
ing is  so  fatal  to  a  speech  or  a  cross-examination  as 
an  exhibition  of  ill-feeling. 

taken  down  in  writing  before  an  officer,  or  his  cleric,  in  the  ecclesiasti- 
cal courts,  and  all  others  that  have  borrowed  their  practice  from  the 
civil  law;  where  a  witness  may  frequently  depose  that, in  private, which 
be  would  be  ashamed  to  testify  in  a  public  and  solemn  tribunal.  There, 
an  artful  or  careless  scribe  may  make  a  witness  speak  what  he  never 
meant,  by  dressing  up  liis  depositions  in  his  own  forms  and  language; 
but  he  is  here  at  liberty  to  correct  and  explain  his  meaning,  if  misun- 
derstood, which  he  can  never  do  after  a  written  deposition  is  once  taken. 
*  *  *  In  short,  by  this  method  of  examination,  the  persons  who  are 
to  decide  upon  the  evidence  have  an  opportunity  of  observing  the  (juali- 
ty,  age,  education,  understanding,  behavior  and  inclinations  of  the 
witness:  in  which  points  all  persons  must  appear  alike,  when  their  de- 
positions are  reduced  to  writing  and  read  to  the  judge  in  the  absence 
of  those  who  made  them;  and  yet  as  much  may  be  frec|uently  collected 
from  the  manner  in  which  the  evidence  is  delivered  as  from  the  matter 
of  it."    3  Blackstone's  Commentaries,  373. 


164  AMERICAN   ADVOCACY. 

§  138.  Admissions  by  Counsel  or  His  Client. — Some 
of  the  greatest  clangers  and  embarrassments  of  a 
law-suit  arise  from  loose" and  reckless  admissions  on 
the  part  of  counsel  or  his  client  before  or  dur- 
ing the  trial.  While  it  may  seem  discourteous  not  to 
confer  freely  with  opposing  counsel  about  the  facts 
of  the  case,  especially  where  an  amicable  adjustment 
is  sought,  counsel  must  never  lose  sight  of  the  fact 
that  negotiations  for  a  compromise  maj^  fail  and  the 
point  at  issue  be  submitted  to  the  white  heat  of  a 
judicial  inquiry  where  every  admission  on  his  part 
will  but  add  fuel  to  the  flames.  But  probably  it  is 
not  so  much  counsel  as  his  client  who  needs  thus  to  be 
cautioned.  An  attorney  should  insist  strictly  on 
his  client  refusing  any  interview  whatever  from 
opposing  counsel  or  the  latter's  client  or  any  of  their 
agents.  Too  many  "good  cases"  have  been  damaged 
by  such  interviews  for  an  advocate  to  disregard  such 
tactics  on  the  part  of  his  opponent. 

The  best  rule  would  be  for  the  client  to  be  in 
structed  to  have  nothing  whatever  to  do  or  to  say 
about  his  case,  and  to  refer  all  inquirers  to  his  coun- 
sel; and  for  counsel,  in  as  courteous  manner  as  possi- 
ble, so  as  not  to  give  offense,  to  evade  any  discussioQ 
whatever  of  the  impoi'tant  questions  of  fact  involved 
in  the  case.  Some  writers  on  this  subject  have  some- 
times counseled  admissions  in  writing.^ 

'  Elliott's  Work  of  the  Advocate,  p.  129.  The  author  says:  "Admis- 
sions should  be  sparingly  made  and  only  after  calm  deliberation.  It  is 
unsafe  to  make  them,  no  matter  what  their  character,  otherwise  than 
in  writing.  Experienced  attorneys  strongly  advise  against  making  any, 
except  upon  matters  of  minor  importance,  but  this  advice  hardly  goes 
far  enough,  for,  even  though  the  matter  has  apparently  little  influence 
upon  the  merits  of  the  case,  no  admissions  should  be  made  without  full 
consideration;  and  when  made  should,  if  practicable,  be  written  out  ia 
full." 


TACT  AND  TACTICS.  165 

But  we  do  not  feel  constrained  to  advise  even  the 
indulofence  of  this  liberty  of  counsel  with  his  client's 
cause  of  action.  All  admissions  necessary  or  proper 
on  the  part  of  an  advocate  should  be  made  in  his 
pleadings. 

§  139.  Calculating  the  Value  of  the"  Evidence  or  the 
Verdict  of  the  Jury. — Neither  law  nor  human  nature 
is  an  exact  science.  Numerically  calculated,  one  may 
say  of  the  witnesses,  twice  one  are  two;  in  forensic 
arithmetic  twice  one  ma}-  be  none — nay,  may  even  be 
one  against  you.  Nor  is  the  jury  a  body  upon  whom 
one  can  calculate  with  unerring  certainty.  The  advo- 
cate's cause  ma}"  be  just,  but  that  is  no  all-sufficient 
reason  why  they  will  find  so.  Facts  may  lie  so  deeply 
imbedded  that  the  superincumbent  strata  ma.y  not  in 
any  way  reveal  or  indicate  their  presence  to  the  ordi- 
nary mind.  The  advocate's  business  will  be  to 
reach  them  by  a  chain  of  argument  and  natural  infer- 
ences to  be  drawn  from  the  evidence  around  him. 
If  the  jury  were  a  machine  into  which  he  could  thrust 
the  facts  at  one  end  and  take  them  out  in  the  shape 
of  a  verdict  at  the  other,  all  difficulties  would  vanish. 
This,  however,  is  not  the  process  by  which  vej'dicts 
are  obtained.  The  first  thing,  for  the  advocate  is  to 
present  his  evidence  in  a  prohahle  shape,  the  next  is 
to  get  it  believed,  or  taken  an  believed^  by  the  twelve 
good  men  and  true  in  the  jury-box.  Not  so  easy  a 
matter,  by  any  means,  as  at  first  sight  it  may 
appear. 

§  140.  The  Value  of  the  "Last  Word."— A  great  deal 
has  been  said  about  the  "last  word,"  but  there 
can  be  little  difference  of  opinion  as  to  its  value  with 
a  good  advocate.  It  possesses  a  creative  and  ananni- 
hilative  force.  It  Jias  the  field  to  itself,  and  works 
without  opposition.  In  its  course  it  will  sometimes 
uproot  arguments  and    disperse  evidence,   leaving 


166  AMERICAN   ADVOCACY. 

nothing  but  ruin  in  its  track;  but  it  may  be  used  to 
give  the  finishing  touches  to  the  opponent's  case. 
All  depends  upon  the  knowledge  of  the  advocate.  In 
this  matter  of  the  repl.y,  knowledge  is  of  more  value 
than  genius  itself;  knowledge  will  include  both  the 
evidence  and  the  best  mode  of  presenting  it.  When 
the  advocate  has  the  "last  word,"  evidence,  argu- 
ments, theories,  prejudices,  sympathies,  are  at  his 
mercy;  ridicule,  invective,  persuasion,  are  read}^  for 
his  service.  Assuming  things  to  be  pretty  equal, 
he  must  have  studied  advocacy  and  human  nature  to 
little  effect  if  he  does  not  win  the  verdict. 

§  141.  Adaptation  and  Arrangement  of  the  Eviden- 
tiary Forces  in  the   Closing  Address. — With  all  the 
advocate's  native  skill  and  ingenuity  it  may  happen 
that  he  has  not  succeeded  with  his  witnesses.     He 
could  not  make  them  intelligent.     The  most  powerful 
imagination  cannot  supply  facts.     The  advocate  may 
find  out  at  last  that  he  has  a  weak  case.     But  w^hat 
then?     Shall  he  despair?     By  no  means,  if  he  have 
learnt  something  of  the  art  he  practices.  A  weak  case 
and  a  strong  advocate  will  often  beat  a  strong  case 
and  a  weak  advocate.     Now  the  strength  of  advocacy 
lies  in  the  adaptation  of  'materials  to  the  end  designed. 
If  th^  advocate  can  adjust  them  so  that,  as  a  whole, 
they  will  seem  to  be  true,  he  will  win.     The  facts  may  ■ 
be  so  arranged  that  they  will  look  larger  than  they 
are,  all  things  being  large  or  small  by  comparison. 
Opposing  facts  maj^  be  made  to  look  small  by  con- 
trast, or  may  disappear  altogether  by  being  cast  into 
the  shade.     It  may  be  that  the  advocate  has  acquired 
a  mode  of  directness  in  addressing  the  jury ;  he  never 
uses  an  argument  that  they  cannot  "'rightlj^  make 
out;"  his  habit  of  "straightforwardness"  fascinates 
them ;  he  avoids  all  appearance  of  being  an  ingenious 
twister  of  facts,  knowing  that  such  ingenuity  will  be 


TACT  AND  TACTICS.  167 

taken  at  the  value  of  the  conjuror's  trick — clever  but 
deceptive;  he  never  m^'stifies  his  case  b}^  unintelligi- 
ble language,  but  lets  the  facts  speak  for  themselves, 
— he  uses,  in  short,  plain  words  to  plain  men,  knowing 
that  the  object  of  honest  speech  is  to  be  understood; 
and  that  when  best  understood  he  seems  to  be  most- 
honest. 

§  142.  The  Court  —Overcoming  the  Preconceptions  of 
the  Judge. — This  brings  us  to  the  consideration  of 
another  matter  of  no  small  importance  in  the  present 
daj',  when  the  tendenc}^  appears  to  be  to  supersede  the 
jury-box  with  the  bench.  Let  not  the  reader,be  startled 
at  the  statement  that  there  is  greater  pi*ejudicetoover- 
come  in  a  judge  than  in  a  jurj^  Although  his  honor 
could  never  be  brought  to  believe  in  such  a  weak- 
ness, he  will  endeavor  to  shoio  he  has  no  prejudice, 
and  this  effort  is  the  safeguard  of  the  counsel.  The 
prejudices  of  a  jury  are  modified  by  a  kind  of  mental 
attrition;  sometimes  they  even  neutralize  one  another. 
It  is  idle  to  attack  a  prejudice  directly.  Prejudice  is 
reason-proof;  but  that  is  no  reason  why,  in  matters 
depending  upon  evidence,  the  advocate  may  not  appeal 
successfully  to  the  intellect.  In  doing  so  it  will  not  be 
forgotten  that  a  judge  has  a  high  sense  of  honor,  and 
a  desire  to  seem  impartial.  These  ai-e  the  safeguai'ds 
against  the  infirmities  which  sometimes  affect  the 
noblest  minds. 

§  143.  The  Court — Assuming  that  the  (^ourt  is  Ignor- 
ant of  the  Law. — It  is  a  very  common  error,  man.y  times 
a  fatal  one,  on  the  part  of  the  advocate,  to  assume  and 
even  sa}"  that  he  ''assumes  tliat  the  court  knows  the 
law;"  "of  course  the  court  is  familiar  with  the  law  in 
this  case."  He  hfid  better,  Jind  he  will  if  hei.s  wise, 
assume  that  the  court  is  densel}^  ignorant  of  the  law 
of  his  case,  and  then  proceed  to  enlighten  the  court 
upon  the  law  of  his  case,  for  if  it  so  be  that  the  court 


168  AMERICAN   ADVOCACY. 

does  know  the  law  of  his  case,  all  right,  no  harm  is 
•done;  and  if  the  court  does  not,  the  advocate  may  by 
his  fatal  confidence  lose  his  case;  whereas,  if  he  would 
enlighten  the  court  as  he  should,  victory  would  be 
his.  He  has  devoted  weeks,  it  ma}"  be,  to  th6  law 
peculiar  to  his  case,  while  to  the  court  it  maj^  all  be 
new. 

§  144.  How  to  Meet  an  Unscrupulous  and  lU-Natured 
Opponent. — If  an  advocate  is  not  the  subtlest  cross- 
examinel'  in  the  world  it  is  not  the  least  reason  why 
he  should  put  a  dangerovs  question;  if  he  is  not  the 
greatest  orator  it  is  no  excuse  for  talking  about  the 
wrong  thing,  or  talking  about  nothing.  Woe  to  the 
client  whose  counsel  needlessly  wounds  the  feelings 
of  a  witness  1  Even  when  obliged  to  ask  a  painful 
question,  the  jury  will  look  upon  him  with  dislike; 
and,  if  his  manner  do  not  soften  the  act,  they  will 
regard  him  as  a  wanton  vivi sector  who  delights  in  a 
painful  operation  and  would  by  no  means  spare  them 
under  similar  circumstances.  But  when  we  meet  with 
an  opponent  who  does  not  spare,  how  shall  he  be  dealt 
with?  The  answer  is  easy.  Be  severely  silent.  The 
advocate  should  not  retaliate,  or  he  will  undo  the  good 
his  opponent's  unscrupulous  conduct  has  inflicted.  He 
should  leave  himself  in  patient  suffering  to  the  jury 
who  in  due  time  will  reward  his  forensic  forbearance. 
If,  however,  he  think  it  wise  to  allude  to  it,  he  should 
do  so  in  a  manner  that  shall  evoke  pity  as  well  as 
indignation ;  but  he  should  be  careful  not  to  avenge 
his  client  by  a  counter  attack  of  abuse;  he  should 
throw  the  blame  at  all  times  upon  his  opponent. 

§  145.  Under  What  Conditions  an  Advocate  Profits 
iby  Delay. — We  of  course  do  not  expect  in  this  sec- 
tion to  consider,  to  any  extent,  the  law  applicable  to 
■continuances  and  delay.  Nevertheless,  from  the 
•standpoint  of  an  advocate  a  delay  or  continuance  is 


TACT  AND  TACTICS.  169 

often  a  most  important  consideration.  The  main 
reasons  for  delay,  so  far  as  the  advocate  is  concerned, 
are  lack  of  sufficient  preparation  and  the  absence  of 
important  witnesses.  While  many  books  and  the 
addresses  of  great  lawyers  expatiate  generally  on  the 
ill-favor  with  which  the  request  for  a  delaj"  or  contin- 
uance is  regarded  both  by  the  court  and  the  profes- 
sion, we  believe  the  subject  has  been  exaggerated  to 
such  an  extent  that  young- lawyers,  at  least,  are  some- 
times constrained  to  permit  themselves  to  be  rushed 
into  a  case  totally  unprepared,  because  of  the  fear  of 
acquiring  a  reputation  for  carelessness  and  coward- 
ice. It  is  of  course  a  very  discreditable  thing  for  a 
lawyer  to  be  alwaj's  unprepared  and  to  get  into  the 
habit  of  asking  for  continuances,  merely  because  of 
his  own  slovenliness.  Fabian  tactics  of  that  charac- 
ter will  certainly  be  discountenanced  both  by  the 
courts  and  the  profession.  But  where  b}'^  some  unfore- 
seen circumstance  an  important  witness  cannot  be  at 
the  trial  on  the  day  set,  or  there  is  some  reasor.  why 
a  trial  on  that  day  would  materially  work  against  the 
interests  of  the  advocate's  client,  he  is  justified  in 
seeking  delay  on  any  legitimate  ground  he  can  press 
forward  as  an  excuse.^  Some  opportunity  is  gener- 
ally afforded  in  the  progress  of  any  case  to  find  some 
good  i-eason  on  which  to  base  a  motion  for  a  contin- 
uance. However,  to  be  prepared  to  take  effective 
advantage  of  evei-y  opportunity  of  this  character  the 
advocate  must  have  the  statutes  and  decisions  of  his 

'  '^Cantioa  is  as  important  as  courage.  It  is  only  the  foolhardy,  not 
the  wise,  wlio  assume  the  liazard  of  trying  a  cause  without  ample  time 
for  preparation,  or  who  risk  a  trial  wiiere  iuiportant  evidence  tliat  delay 
may  secure  is  absent.  I'rudence  reciuires  that  no  risks  be  assumed 
where  diligence  and  care  can  avoid  them.  Where  tliere  is  a  risk  that  a 
postponement  will  avoid,  and  tliere  is  reason  for  a  postponement,  then 
It  is  the  part  of  wisdom  and  prudence  to  apply  for  a  continuance.^ 
Elliott's  Work  of  the  Advocate,  p.  166. 


170  AMERICAN   ADVOCACY. 

own  state,  and,  to  some  extent  of  other  states  on 
this  question  and  other  questions  of  practice  closely 
related  to  it,  at  his  fingers'  ends.  If,  however,  as 
might  be  the  case,  noopportunity  for  delay  is  afforded, 
the  advocate  must  seel^  the  indulgence  of  the  oppos- 
ing counsel.  The  frequency  with  which  cases  are 
continued  by  consent  in  all  our  ?iisl  priiis  courts  is 
evidence  of  the  magnanimous  spirit  and  free-masonry 
prevailing  among  the  members  of  the  American  bar; 
indeed  with  a  reputable  opponent  no  advocate  need 
fear  to  meet  with  any  denial  to  his  first  request  for  a 
continuance -or  for  any  other  re:isonable  courtesy. 

In  criminal  procedure  the  defense  sometimes 
desires  a  delaj^  not  only  for  the  reasons. already  stated 
but  for  the  additional  reason  that  sometimes  it  is 
well  to  avoid  a  trial  at  a  time  too  near  the  date  of  the 
commission  of  the  alleged  offense.  Public  opinion  is 
sometimes  so  strong  that  an  impartial  jury  of  the 
vicinage  would  be  a  practical  impossibility.  A  few 
months'  delay  will  sometimes  cool  the  intense^ anger 
of  the  populace  and  insure  a  fairer  trial. 

§  146.  Danger  in  Wandering  from  the  Main  Point. — 
One  of  the  most  universal  tendencies  of  the  human 
mind  is  to  wander  from  the  original  thought  which  it 
may  have  started  with  at  a  given  time,  into  by-paths 
which  branch  off  from  it  at  many  and  frequent  inter- 
vals. This  besetting  sin  of  human  nature  may  some- 
times lead  the  advocate,  either  in  the  presentation  of 
his  evidence  or  in  his  address  to  the  court  or  jury,  to 
w^ander  from  the  main  point  at  issue  and  not  only 
confuse  the  minds  of  those  addressed  but  at  the  same 
time  dissipate  the  energies  of  the  advocate  which 
might  have  been  more  profitablj^  emplo.yed  in  batter- 
ing awaj^  persistently  at  the  main  stronghold  of  the 
enemy.  Of  course  the  opposing  counsel  will  attempt 
to  entice  the  advocate  for  the  other  side  to  waste  his. 


TACT  AND  TACTICS.  171 

energies  on  issues  of  minor  importance  by  challeng- 
ing him  to  the  conflict  by  boastful  allegations  and 
sarcastic  insinuation.  Let  the  advocate  beware  how 
he  meet  these  insidious  advances  of  the  enemy. 
As  a  general  rule  it  is  best  to  ignore  all  irrelevant 
issues  and  to  hold  the  mind  of  the  jury  to  the  main 
point  at  issue.  If  controversy  is  joined  by  counsel 
over  points  of  minor  importance  the  minds  of  the  jury 
are  diverted  and  the  value  of  the  main  point  unappre- 
ciated amid  the  resulting  confusion.  Hon.  J.  W.  Don- 
ovan has  well  expressed  the  idea  in  succinct  language^ 
when  he  said:  "The  real  winner,  after  all,  is  one  who, 
with  singleness  of  purpose,  holds  to  his  point,  and 
hugs  the  issue  to  the  end."^ 


1  Donovan's  Modern  Jury  Trials,  page  213.  In  the  connection  in 
wliich  this  statement  is  made  by  Mr.  Donovan,  tlie  latter  illustrates  it 
by  relating  tiie  excellent  and  celebrated  story  entitled,  "Kill  tlie  Squir- 
rel," which  appeared  some  time  ago  in  Ilarper^s  Weekly  and  which  fur- 
nishes a  profitable  lesson  to  the  law  student.  The  story  relates  the 
experience  of  a  lawyer  in  selecting  a  clerk.  The  lawyer  put  a  notice 
in  an  evening  paper  saying  lie  would  pay  a  small  stipend  to  an  active 
ofHce  derli;  next  morning  his  ottice  was  crowded  with  applicants — all 
bright  and  many  suitable.  He  had  tliem  wait  in  a  room  till  all  should 
arrive,  and  then  arranged  them  in  a  row  and  said  he  would  tell  a  story 
and  note  coniments  of  the  boys,  and  judge  from  that  whom  he  would 
engage. 

"A  certain  farmer,"  began  the  lawyer,  '-was  troubled  with  a  red 
squirrel  that  got  in  through  a  hole  in  his  barn  and  stole  his  seed  corn; 
he  resolved  to  kill  that  squirrel  at  the  flist  opportunity.  Seeing  him 
go  in  at  the  hole  one  noon  he  took  his  shotgun  and  flred  away;  the  first 
Bhot  set  the  barn  on  fire." 

"Did  the  barn  burn?"  said  one  of  the  boys. 

The  lawyer,  witliout  answer,  continued:  "And  seeing  tlie  bam  on 
fire  the  farmer  seized  a  pail  of  water  and  ran  in  to  put  it  out." 

"Did  he  put  it  out?"  said  another." 

••Ab  he  passed  Inside  the  door  shut  to,  and  the  barn  was  soon  in  full 
flames.    Then  the  hired  girl  ruslied  out  with  more  water—" 

"Did  the  hired  girl  burn  up,  too?"  said  another  boy. 

The  lawyer  went  on  without  answer— "Then  the  old  lady  came  out, 
and  all  was  noise  and  confusion,  and  everjbody  was  trying  to  put  out 
the  fire." 


172  AMERICAN  ADVOCACY. 

"Did  they  all  bum  up?"  said  another. 

The  lawyer,  hardly  able  to  restrain  his  laughter,  said:  "There, 
there,  that  will  do;  you  have  all  shown  great  interest  in  the  story;" 
but,  observing  a  little  bright-eyed  fellow  in  deep  silence  he  sai'd: 
"Now,  my  little  man,  what  have  you  to  say?" 

The  little  fellow  blushed,  grew  uneasy  and  stammered  out:  "J  icant 
to  know  what  became  of  that  squirrel,  thafs  what  I  want  to  knoio.'''' 

,  "You  will  do,"  said  the  lawyer.  "You  are  my  man;  you  have  not 
been  switched  off  by  a  confusion  and  a  barn's  burning  and  hired  girls 
and  water  pails;  you  have  kept  your  eye  on  the  squirrel." 

As  Mr.  Donovan  suggests  a  whole  chapter  is  given  in  this  story.  It 
is  packed  full  of  excellent  advice  to  beginners  with  a  few  good  hints  to 
older  advocates.  In  every  suit  there  is,  or  should  be,  one  squirrel  to 
kill,  and  no  more. 


CHAPTER  XIII. 


BRIEFS,  ARGUMENTS  AND   METHODS  OF  SPEAKING. 


§147.    The  Lawyer's  Brief— Its  Re- 
quisites and  Value.  . 

148.  Addressing  the  Court — Re- 

quisites and  Value  of  Oral 
Argument. 

149.  Addressing  the  Court— Dis- 

cussion of  Principle  versus 
the  Citation  of  Authority. 
160.    Addressing  the  Court  —  In- 
terruptions by  the  Court. 

151.  Addressing  the  Jury — Gen- 

eral Considerations. 

152.  Addressing  the    Jury  —  A 

Temperate  Style  Before  a 
Jury. 

153.  Addressing  the  Jury — Win- 

ning the  Master  Mind  of 
the  Jury. 

154.  Addressing  the  Jury — "Ora- 

tory" Before  a  Jury. 

156.  Forensic  Eloquence  —  Its 
Value  and  Re<iuisltes. 

156.  Forensic  Eloquence — Genius 
or  Hard  Work  as  a  Requi- 
site. 


§157.  Forensic  Eloquence — Mental 
Absorption  and  Concentra- 
tion. 

158.  Forensic  Eloquence  —  The 
Value  of  a  Personal  In- 
quisition. 

169.  Forensic  Eloquence — How 
to  Meet  an  Attack. 

160.  Forensic  Eloquence  —  Dis- 

cussion of  Adverse  Author- 
ities. 

161.  Forensic  Eloquence — Order, 

Arrangement  and  Perora- 
tion. 

162.  Elocution  —  Cultivation    of 

the  Powers  of  Speech. 

163.  Elocution — Imitation  and 

Affectations  of  Speech. 

164.  Danger  of  Achieving  a  Rep- 

utation as  a  Wit 
166.    Appropriate  Physical  Ges- 
tures and  Facial  Expres- 
sions in  Speaking. 


§  147.  The  Lawyer's  Brief— Its  Requisites  and  Value. 

— A  very  important  part  of  a  lawj'er's  work  is  the 
preparation  and  submission  of  briefs  for  both  nisi 
priu8  and  appelhite  tribunals.  The  former,  however, 
are  hardly  more  than  memoranda  of  authorities;  the 
latter  present  the  entire  case  to  the  appellate  tribu- 


174  AMERICAN   ADVOCACY. 

nal  and  the  advocate  fails  or  succeeds  there  wholly 
on  the  weakness  or  efficacy  of  his  printed  brief. 
Nothing  is  more  important  therefore,  than  a  perfect 
brief. 

The  different  parts  of  a  brief* vary  in  some  partic- 
ulars in  the  different  states.  The  statutes  and  the 
rules  of  court  must  always  be  carefully  consulted. 
Most  usually,  however,  the  different  parts  of  the 
brief  are  as  follows:  First,  abstract  of  the  record; 
second,  statement  of  the  case;  third,  assignment  of 
errors;  fourth,  points  and  authorities;  fifth,  argu- 
ment; sixth,  index.  The  order  of  the  various  parts 
may  be  changed,  but  the  order  here  given  is  univer- 
sally recognized  as  the  most  perfect  and  logical. 

The  abstract  of  the  record  sliould  be  full,  but  not 
verbose;  accurate,  but  clear.  Clearness  and  brevity 
are  the  two  most  necessary  qualities.  The  purpose 
of  the  abstract  is  to  make  the  important  evidence 
easily  accessible  to  the  court.  It  is  therefore  always 
advisable  to  have  the  abstract  sub-headed  throughout, 
showing  at  a  glance  where  the  testimonj^  of  one  witness 
ends  and  another  begins;  and  every  other  resource 
of  printet-'s  ink  and  of  wise  arrangement  should  be 
taken  advantage  of  to  make  the  abstract  attractive  to 
the  court  —  something  it  very  seldom  is.  Such  an 
abstract  will  invite  the  attention  of  the  court  where 
a  voluminous,  unintelligible  and  slovenly  printed  one 
will  repel  an  investigation  even  on  the  part  of  a  most 
painstaking  and  conscientious  judge. 

The  statement  of  facts  in  a  lawyer's  brief  ought 
to  test  the  strength  of  his  case.  In  the  facts  lies  the 
justice  of  the  cause.  The  best  case  can  be  so  ob- 
scurely stated  as  to  conceal  its  merits ;  and  the  weak- 
est can  be  so  plausibly  'stated  as  to  make  a  first  good 
impression.  A  famous  writer  says  that  every  cause 
has  a  bad  side;  and  it  may  be  affirmed  that  the  worst 


METHODS  OF  SPEAKING.  175 

of  causes  has  at  least  one  good  side.     The  art  is  to 
make  the  best  of  your  case.^ 

The  assignment  of  errors  is  simply  a  copy  of  the 
points  submitted  as  grounds  for  the  motion  for  a  new- 
trial.  The  points  and  authorities  is  a  short  digest  of 
the  law  of  the  case,  citing  all  the  authorities  sustain- 
ing the  various  points  of  law  on  which  you  desire  to 
insist  in  the  argument.  Here  the  statements  of  the 
legal  propositions  should  be  short  and  succinct  and 
so  carefully  worded  as  to  evidence  at  once  a  direct 
connection  and  bearing  upon  the  facts  of  the  particu- 
lar case.  In  the  written  argument  insistence  should 
be  laid  upon  the  most  important  points,  which  again 
should  be  arranged  in  the  order  of  their  force  and 
conclusiveness  on  the  advocate's  case,  the  most  im- 
portant point  of  all  coming  last.  The  index  also  is 
not  to  be  slighted,  as  it  too  often  is.  The  advocate 
must  remember  that  the  judges  are  men  and  will  al- 
ways take  the  path  of  the  least  resistance  in  arriving 
at  a  decision.  He  should  be  careful,  therefore,  that 
his  opponent's  brief,  by  its  clear  and  logical  arrange- 
ment and  its  complete  and  exhaustive  index,  does  not 
offer  a  more  accessible  avenue  to  a  knowledge  of  the 
case  than  his  own  brief. 

»  ''An  eminent  member  of  the  bar,"  said  Judge  Daly,  of  New  York, 
"told  ine  that  from  the  beginning  of  his  practice  he  had  made  this  part 
of  his  brief  a  special  study,  when  presenting  a  case  to  an  appellate  tri- 
bunal or  to  a  single  judge;  and  that  the  first  compliment  he  received 
from  the  court  was  for  his  statement  of  the  facts  of  a  most  complicated 
case.  He  had  devoted  great  care  to  arranging  the  array  of  particulars 
so  as  to  make  the  comprehension  of  the  facts  as  easy  as  possible,  and  lie 
was  told  that  it  was  mainly  his  statement  of  the  facts  tliat  won  the  case, 
a  compliment  that  gave  intense  satisfaction  to  a  young  practitioner.  It 
was  this  gentleman's  belief  that  success  in  appeal  cases  largely  de- 
pended on  a  clear  statement  of  fact  in  the  brief.  It  is  undeniable  that 
if  such  a  statement  is  lucid  and  convincing  and  impresses  the  court  with 
the  justice  of  your  cause  your  argument  on  the  law  will  be  greatly  aided. 
In  a  caae  doubtful  or  novel  as  to  the  legal  questions  involved,  doubt  Is 
certain  to  be  resolved  on  the  side  of  substantial  justice.'* 


176  AMERICAN   ADVOCACY. 

Before  passing  to  the  last  requisite  of  a  good  brief, 
we  desire  to  reiterate  the  emphasis  we  have  already 
placed  upon  the  general  characteristics  of  an  ideal 
brief ,  ^.  e.,  clearness  and  brevity.  It  is,  indeed,  a 
pleasure  for  a  court  to  take  up  a  brief  and  find  every- 
thing in  such  shape  that  they  are  enabled  to  gain  a 
complete  idea  of  the  whole  case  by  simply  glancing 
through  its  pages  and  find  the  statements  therein 
contained  so  clear  that  a  second  reading  is  never  nec- 
essary. And  brevitj^  is  even  more  important.  A 
glance  through  the  decided  cases  will  show  how  often 
courts  have  condemned  the  practice  of  siibmitting 
voluminous  briefs,  and  in  some  cases  have  stricken 
them  from  the  files.  There  is  absolutely  no  occasion 
for  a  brief  to  exceed  one  hundred  pages.  We  make 
this  statement  advisedly  after  consulting  more  than 
five  hundred  briefs  filed  in  our  state  and  federal 
courts.  In  most  instances  they  need  not  exceed  fifty 
pages.  If  the  abstract  of  the  evidence  is  necessarily 
large  by  reason  of  some  rule  of  court  requiring  all 
evidence  to  be  set  out  in  detail  or  under  some  stat- 
utes permitting  what  is  called  the  "short  form"  of 
appeal,  that  is,  without  filing  a  transcript,  the  ab- 
stract should  be  published  separately  and  carefully 
sub-divided,  sub-headed  and  indexed. 

With  respect  to  the  composition  of  briefs  and 
points  submitted  to  the  court,  so  far  as  literary  style 
is  concerned,  and  whether  any  impression  is  made 
by  care  in  that  respect,  it  may  be  inferred  that  the 
substance,  rather  than  the  form,  of  a  brief  is  the 
thing  considered  by  a  judge.  This  is  not  necessarily 
because  of  the  great  pressure  of  business  and  the 
little  time  left  for  dwelling  upon  matters  of  mere 
style,  for  it  is  the  duty  as  well  as  the  inclination  of  a 
judge  to  look  at  the  counsel's  law  and  not  at  the  man- 
ner in  which  he  states  it;  yet  it  must  be  evident  that 


METHODS  or  SPEAKING.  177 

form  of  expression  can  add  much  to  the  force  and  im- 
pressiveness  of  a  statement.  The  opinion  of  learned 
judges  often  shows  this.  One  is  particularly  happy 
in  his  choice  of  words;  and  another,  less  so.^ 

§  148.  Addressing  the  Court — Requisites  and  Value  of 
Oral  Argument. — Whether  a  court  can  be  influenced 
more  by  clear,  original  argument  than  by  the  mere- 
citation  of  authority,  we  do  not  believe  to  be  at  all. 
doubtful.  All  courts,  the  members  of  which  lay  any 
claim  to  legal  ability,  favor  an  oral  argument  of 
counsel  in  preference  to  the  dry  citation  of  authority 
in  printed  briefs.^ 

It  is  of  great  advantage  to  the  court  itself.  The 
opportunit}^  to  interrogate  counsel  frequently  leads 
to  a  better  understanding  of  the  nature  of  the  cause, 
and  clears  up  many  doubts.  The  English  reports 
show  that  even  in  the  House  of  Lords  the  argument 
of  causes  frequently  assumes  the  character  of  a  run- 

'  "A  strong  opinion,''  says  Judge  Daly,  to  quote  again  from  an 
address  delivered  by  ttils  learned  judge,  "is  one  containing  law  and  rea- 
son, plainly  stated  in  the  most  forcible  way;  while  an  equally  sound 
utterance  may  be  weak,  because  lamely  and  insufficiently  delivered.  It 
is  not,  however,  to  be  denied  that  a  lawyer's  training  for  his  professioni 
is  not  complete  until  he  has  so  mastered  the  forni  of  expression  as  to  pre- 
sent his  statements  vith  directness,  nor  until  he  has  actpiired  a  vocabu- 
lary extensive  enough  to  give  every  shade  of  meaning  and  the  art  to 
use  it  for  substantial  ends  and  to  the  best  effect." 

2  Mi.  Justice  Harlan,  of  the  United  States  Supreme  Court,  has  this. 
to  say :     '-It  is  a  matter  of  serious  regret  and  concern  that  the  practice- 
of  oral  argument  appears  to  be  falling  into  disuse.    The  idea  seems  to* 
have  l)ecome  general  among  members  of  the  bar  that  we  prefer  argu- 
ments presented  in  the  form  of  written  briefs.    Such  is  not  the  case 
There  are  many  times  when  nothing  can  take  the  place  of  the  personal! 
presentation.    Briefs  are  well  enough  in   their  way,  but  it  very  oftem 
happens  that  the  real  point  upon  which  a  case  turns  may  be  overlooked 
in  a  brief,  while  an  oral  argument  may  serve  to  bring  it  houic  to  the 
court.    A  special  emphasis,  a  striking  simile,  may  throw  new  light  on 
AD  intricate  problem,  and  perhaps  reverse  a  judgment  in  the  mind  of 
the  court." 
12 


178  AMERICAN   ADVOCACY. 

ning  oral  debate  between  court  and  counsel.  In  this 
way  a  great  many  specious  shams  are  pricked  and 
exploded;  the  judges  arrive  at  a  better  understand- 
ing of  the  cause,  and  counsel  are  maintained  in  habits 
of  honesty,  which  they  are  liable  to  fall  from  under  the 
dark  lantern  system  of  "submitting"  causes  on  briefs; 
briefs  which  are  sometimes  concocted  in  a  spirit  of 
deceit  and  falsehood  and  which  are  very  often  unin- 
telligible. We  find,  therefore,  that  the  peculiar 
value  of  oral  argument  lies  in  the  fact  that  the  court 
and  counsel  are  able  to  pick  to  pieces  the  authorities 
and  probe  the  reasons  of  the  law  as  applicable  to  that 
particular  case.  But  it  is  in  such  cases  that  an  at-- 
torney  may  well  quail  before  the  quizzing  of  the  court 
where  he  has  no  more  intimate  acquaintance  with  the 
2  iw  of  his  case  outside  of  the  decided  cases. 

In  the  preparation  of  points  for  the  court,  certain 
rules  may  be  observed :   The  first  rule  is  that  the  print- 
ed or  written  brief  is  to  be  submitted  <7/^^r  the  hearing, 
and  should,  therefore,  be  an  amplification  of  the  oral 
aro-ument.     The  latter  should  be  condensed  as  much 
as  possible,  the  former  may  be  as  full  as  the  advocate 
T)leases.      The  oral  argument  should   not  deal  with 
details  nor  too  many  particulars.     These  should  be 
found  in  the  brief  if  the  court  cares  to  look  for  them. 
The  second  rule  is,  if  there  are  man}^  ix)ints  to  be  sub- 
mitted, that  the  chief  ones  only  should  be  selected  for 
oral  presentation.  The  advocate  should  spread  the  oth- 
ers on  the  points,  but  himself —if  the  colloquialism  is 
permissible — on  one  or  two  of  the  best.     The  third 
rule  is  for  the  advocate  to  cultivate  an  intimate  ac- 
quaintance with  the  elementary  legal  pi-inciples  un- 
derlying his  case  so  that  he  may  make  the  reason  for 
a  decision  of  the  particular  case  in  his  favor,  so  evi- 
dent that  he  compels  an  instant  acceptance  of  his 
position  by  every  member  of  the  court.     Onl,y  one 


METHODS  OF  SPEAKING.  179 

thing  shojild  be  left  for  the  court  to  do  after  the  ad- 
vocate has  finished — the  work  of  finding  authorities 
to  sustain  the  preconceptions  which  the  advocate  has 
already  aroused. 

§  149.  Addressing  the  Court — Discussion  of  Principle 
versus  the  Citation  of  Authority. — A  lawyer's  address 
should  not  be,  as  it  too  often  is,  a  mere  digest  of  the 
authorities  on  the  point  of  law  involved  in  the  particu- 
lar case.  A  clear  and  thorough  discussion  of  the  legal 
principle  underljdng  the  decided  cases  is  undoubt- 
edly of  greater  value.  True,  the  tendency  of  Amer- 
ican lawyers,  at  least,  is  to  dispense  with  any 
original  research  into  the  principles  of  the  law  appli- 
cable to  the  particular  state  of  facts  and  to  rely  too 
strongly  on  the  authoritative  utterances  of  other 
tribunals.  It  may  be  that  the  press  of  litigation  at 
the  present  time  offers  very  little  time  even  where 
there  is  the  inclination  to  reach  independent  conclu- 
sions b}"  original  methods  of  reasoning  and  research. 
And  undoubtedly,  ulso,  the  courts  lend  some  encour- 
agement to  the  practice.  It  certainly  seems,  some- 
times, that  all  an  attorney  is  expected  to  do  on  a 
question  of  law  before  the  court  is  to  cite  a  few 
cases  apparently  on  all  fours  with  his  own  and  demand 
a  decision,  and  where  the  authorities  seem  to  be 
overwhelmingly  in  favor  of  a  certain  j^roposition  the 
court  is  not  even  expected  to  reason  about  it.^ 

But  a  court  is  not  always  unwilling  on  a  difficult  or 
novel  iwint  to  altogether  disregard  the  authorities 

'  Mr.  Bishop  says  that  there  are  enoii^^h  of  these  questions  on  which 
the  authorities  seem  to  be  uniforni,  but  whicli  are  decided  Incorrectly 
on  urlnciple,  and  In  re^jard  to  wlilch  anxious  and  eager  litigants  liave 
been  discouraged  by  "big"  lawyers,  to  Iveep  in  comfortable  circuin- 
-Stances  many  of  the  younger  generation  in  th«  profession  wlio  some- 
llmcs  find  the  struggle  for  existence  too  intensely  engaging. 


180  AMERICAN  ADVOCACY. 

and  consider  the  question  as  res  nova}  Under  such 
circumstances  a  court  is  not  made  to  feel  that  it  is 
being  bluffed,  coerced  or  crushed  by  any  "weight  of 
authority"  into  making  its  decision,  but  on  the  con- 
trary feels  an  added  dignity  when  counsel  approach 
them  as  the  equal  of  any  other  court,  and,  by  in- 
dulging the  presumption  that  the  case  under  review 
is  res  nova^  request  a  decision  on  reason  and  princi- 
ple, rather  than  demand  it  on  authorit3^  Indeed,  it 
is  not  an  extremely  rare  occurrence  for  an  attorney 
appearing  before  a  court  almost  .  bankrupt  as  to 
authorities,  and  thus  compelled  to  rely  altogether  on 
reason  and  principle  to  win  his  case  over  his  appar- 
ently more  fortunate  opponent,  who  had  satisfied 
himself  with  nothing  more  than  the  preponderance 
of  authoritj^.  Of  course,  we  do  not  mean  to  convey 
by  this  that  in  every  case  where  the  authorities  pre- 
ponderate reason  and  principJe  would  dictate  an 
opposite  conclusion — on  the  contrar}^,  they  will  gen- 
erall}^  be  found  together;  but,  since  it  is  human  to 
err,  there  will  be  found  instances,  not  a  few,  in  which 
principle  and  reason  have  been  lost  in  confusion  or 
prejudice.     Out  of  the  latter  and  back  to  the  former 


1  One  of  the  justices  of  the  Xew  York  Supreme  Courtis  reported  as 
giving  voice  to  the  following  striking  sentiments  quite  pertinent  to  this 
question:  "I  have  not  deemed  it  necessary  to  cite  authorities  in  support 
of  the  views  which  I  have  expressed.  It  is  enough  that  they  must 
commend  themselves  to  the  rational  mind.  It  seems  to  be  considered 
in  some  quarters  that  judges  should  not  think  any  more  on  their  own 
account;  that  they  should  spend  their  lives  mousing  through  mouldy 
libraries  in  search  of  what  other  judges  in  a  less  enlightened  age  have 
said,  not  even  upon  the  immediate  question  in  hand,  but  upon  some 
matter  more  or  less  distantly  related.  It  is  thought  to  be  presumption 
to  let  one's  own  bucket  down  into  the  living  well  of  reason,  instead  of 
being  content  to  lick  up  from  the  muddy,  trampled  earth  around  it  the 
green  and  stagnant  leakings  of  the  pstst.  And  so  the  science  of  law, 
which  was  once  deemed  the  perfection  of  human  reason,  is  being  left 
behind  by  every  other  science." 


METHODS  OF  SPEAKING.  181 

the  diligent  attorney  ma}"  lead  the  court  b}'  a  clear 
conception  and  forcible  statement  of  what  the  true 
rule  ought  to  be.  In  jsuch  cases  the  unprejudiced 
mind  of  the  court  is  al\va3's  read}"  to  follow. 

5$  150.  Addressing  the  Court  —  Interruptions  by  the 
Court.  —  Where  an  attornej"  addresses  an  ap- 
pellate tribunal  he  must  remember  that  he  is 
addressing  minds  trained  to  pierce  at  once  to 
the  heart  of  the  case  and  impatient  to  reach  the 
point  decisive  of  the  dispute.  One-half  the  cases 
of  interruption  and  anticipation  of  arguments  by  the 
court  are  due  to  too  much  circumlocution  and  pre- 
paration of  counsel  in  approaching  the  point  of  the 
case.  Judges  are  not  peculiar  in  this  respect.  The 
advocate  would  not  expecta  business  man,  upon  whom 
he  called  with  a  proposition  in  favor  of  which  he 
hoped  to  impress  him,  to  listen  to  his  way  of  unfold- 
ing it,  if  he  thought  of  a  more  direct  way  of  getting 
at  what  he  wished  to  know  and  put  at  once  his  pointed 
questions  to  that  end.  He  would  on  the  contrary,  be 
glad  to  advance  his  statements  in  the  direction  in 
which  the  inquirer's  mind  opened  to  receive  it.  And 
he  would  feel  that  after  he  had  satisfied  him  by  a  full 
discussion  on  the  points  that  first  occurred  to  him, 
leaving  him  to  weigh  his  arguments  at  leisure  he 
could  safely  and  profitabl}-  urge  every  minor  reason 
in  aid  of  them,  confident  of  an  indulgent  auditor. 
Thei'e  is  every  reason,  therefore,  for  the  j'oung 
practitioner  not  to  feel  disconcerted  at  interruptions 
by  way  of  inquiries  from  the  bench.  They  serve  to 
show  where  the  strain  of  the  case  comes  and  wliere 
his  greatest  exertion  must  be  made.  ' 

^  151.  Addressing  the  Jury— General  Considerations. 
— Turning  to  the  consideration  of  the  best  method 
of  presenting  a  case  to  a  jury,  it  must  be  apparent  at 
once  that  a  different  rule  is  to  be  observed  from  that 


182  AMERICAN   ADVOCACY. 

which  applies  in  arguing  a  point  before  a  court.  There 
is  a  much  greater  latitude  of  observation  in  discuss- 
ing a  question  of  fact  than  of  law,  and  a  different 
method  must  be  pursued  in  convincing  minds  not 
always  trained  to  reason  closel}'  upon  any  subject 
nor  capable  of  close  attention.^ 

Here  is  the  marked  difference  in  addressing  a 
court  and  in  addressing  a  jury.  With  the  former 
the  advocate  begins  with  his  strongest  point  because 
the  judge,  with  his  training  and  experience,  sees  the 
point  of  the  case  at  once  and  his  mind  refuses  to  be 
diverted  until  the  point  is  fully  discussed.  But  the 
juryman  is  desirous  of  taking  the  case  as  the  advo- 
cate presents  it.  He  soon  loses  interest  in  it  if  the 
latter  does  not  begin  in  a  manner  to  attract  his  at- 
tention and  continue  with  matter  both  direct  and  per- 
tinent. The  advocate  has,  therefore,  to  gain  his  at- 
tention; but,  in  order  to  make  the  most  lasting  im- 
pression he  should  begin  with  considerations  of  lesser 
weight,  increasing  the  strength  of  his  arguments  as 
he  goes  on,  and  reserving  his  most  convincing  for 
the  close.  This  is  and  always  has  been  the  art  of 
oratory.     It  is  the  dramatic  method  by  which  all  ora- 


1  Dr.  Johnson's  advice  to  counsel,  argiiinoj  before  a  legislative  com- 
mittee, might  be  urged  witli  respect  to  addressing  a  jury :  "You  must 
not  argue  there  as  if  you  were  arguing  in  the  schools;  close  reasoning 
will  not  fix  their  attention;  you  must  say  the  same  thing  over  and  over 
again  in  different  words.  If  you  say  it  but  once,  they  miss  it  in  a  mo- 
ment of  inattention.  It  is  unjvjst  to  censure  lawyers  for  multiplying 
words  when  they  argue;  it  is  often  necessary  for  them  to  multiplj^ 
words."'  Referring  on  another  occasion  to  the  course  whicli  counsel 
should  pursue  in  arguing  at  the  bar  of  the  House  of  Commons,  Johnson 
said:  "You  must  provide  yourself  with  a  good  deal  of  extraneous  mat- 
ter which  you  are  to  produce  occasionally  so  as  to  fill  up  the  time;  for 
you  must  consider  that  they  do  not  listen  much.  If  you  begin  with  the 
strength  of  j'our  cause,  it  may  be  lost  before  they  begin  to  listen.  When 
you  catch  a  moment  of  attention  press  tlie  merits  of  the  question  uijon 
them." 


METHODS  OF  SPEAKING.  183 

torical  effects  are  achieved.  The  interest  of  the 
hearer  is  excited,  and  the  chief  point  is  made  when 
his  attention  is  riveted  upon  the  subject.  It  is  not 
ineffective  to  begin  with  a  rather  weak  argument.  If 
the  advocate  perceive  that  his  auditor  sees  the 
weakness  or  the  fallac.y  of  it,  he  has  gained  his  point 
in  securing  his  attention  and  he  is  read}'  to  appreciate 
the  better  considerations  he  is  next  to  urge. 

It  is  sometimes  necessary  to  address  juries  that 
are  not  only  inattentive  but  also  hostile.  How.  with- 
in the  limits  of  an  ordinary  summing  up,  to  convert 
such  auditors  is  the  problem  for  the  jury  lawyer.^ 

'  "I  recall  with  admiration,"  says  Judge  Daly, '"the  manner  in  which 
this  was  done  in  a  trial  I  witnessed.  The  case  was  for  rent  upon  the 
lease  for  one  year  of  a  suburban  cottage,  and  the  defense  was  fraudulent 
representations  that  the  locality  was  healtliful.  whereas  it  was  a  chills 
and  fever  district,  and  the  tenant,  having  relied  on  the  representations 
and  signed  the  lease,  went  into  possession,  and  the  w liole  family,  do- 
mestics included,  having  enjoyed  sitting  out  in  the  moonlight  for  some 
weeks,  were  all  laid  up  with  malnria.  The  landlord  denied  then  presen- 
tations, but  his  claim  of  four  hundred  (^ollars  for  his  year's  rent  seemed 
in  great  peril  after  the  tenant  and  his  witnesses  iiad  tinislied  their  tale 
of  woe,  for  the  twelve  jurymen,  and  one  sympathetic  juryman  in  par- 
ticular, regarded  tlie  landlord  and  tiis  witnesses  willi  evident  distrust. 
The  case  went  to  tlie  jury  upon  tiie  issue  wliether  or  not  sticli  represen- 
tations iiad  been  made.  It  was  oath  against  oatii.  and  tlie  lessor's  coun- 
sel had  nothing  to  suggest  but  tlie  improbaliility  that  any  business  man 
would  make  such  representaiions  and  risk  his  whole  rent  upon  tlie  re- 
sult. I  shall  never  forget  the  ingenious  manner  in  whieh  the  counsel 
opened  his  case.  It  was  a  discouraging  thing  to  rise  and  face  the  lower- 
ing regards  of  eleven,  jurymen.  I  say  eleven,  because  the  twelfth 
juryman,  the  sympathetic  on«'.  declined  to  look  at  him  at  all.  and  de- 
liberately turned  in  his  seat  so  as  to  present  hi-  back  to  the  counsel  as 
he  got  up  to  plead  the  cause  of  the  hated  landlord.  He  was  like  the 
member  on  the  committee,  he  had  niadc  up  his  mind.  Tlie  i^ounsel  rose 
with  the  written  lease  in  his  hand,  whicli  he  slowly  unfolded  and  held 
out  to  the  jury.  'Gentlemen,"  he  said  'look  at  this  paper.  Wliat 
would  you  call  it y  As  plain  business  men  you  would  frankly  answer 
that  it  is  a  lease.  Oh.  no,  gentlemen,  it  is  quite  a  different  inslruiiifjnt  if 
the  defendant  prevails  here,  for  according  to  him  it  is  a  policy  «»f  insur- 
ance l)y  which  my  client  for  tlie  sum  of  four  hundred  dollars  guaran- 
'  tees  the  tenant  and  bis  wife,  and  bis  t^bildren  and   liis  servants  agains 


184  AMERICAN   ADVOCACY. 

^  152.  Addressing  the  Jury  —  A  Temperate  Style 
Before  a  Jury. — A  temperate  style  is  alwaj^s  more 
effective  than  a  noisj^  one.  A  verdict  is  never  ob- 
tained by  noise;  foam  has  no  weight,  fur}^  of  lan- 
guage no  force.  Still,  it  is  not  intended  for  a  mo- 
ment to  suggest  that  a  conversational  stj'le  is 
powerful;  on  the  contrary,  an  advocate  might  as 
well  attempt  to  fire  a  bed  of  growing  rushes  with  a 
piece  of  tinder  as  rouse  a  jury  with  a  feeble  speech. 
Bad  speaking  is  infinitely  worse  than  silence.  Let 
the  facts  speak  at  all  events.  But  a  roaring  st3^1e 
never  persuades;  it  only  astounds  if  it  does  not  stun. 
Juries  generally  endeavor  to  do  what  they  believe  to 
be  right,  and  to  decide  justly;  it  is  inherent  in  hu- 
man nature  that  the}'  should;  but  the  danger  of  this 
excellent  quality  is,  thut  their  desire  to  do  what  is 
just  often  leads  them  to  an  unjust  conclusion.  They 
set  up,  as  they  think,  a  kind  of  natural  justice  amongst 
themselves,  as  though  they  should  have  a  common 
standard  of  height  for  all  mankind,  which  would  pro- 
duce, undoubtedly,  much  painful  stretching,  or  undue 
stooping,  if  all  were  forced  to  meet  it. 

This  natural  justice,  unfortunately,  is  neither  law 
nor  equity,  and  generally  inflicts  injur}^  on  both 
parties  to  the  action,  as  the  boys  did  who  divided  the 
bellows  that  each  might  have  a  share.  The  advocate 
who  knows  that  his  client's  rights  are  inconsistent 
with  this  natural  theory  must  convince  the  jury  of 
their  error  and  bring  them  to  a  more  accurate  per- 
<3eption  of  the  merits  of  the  conflicting  claims.  This 
is  not  to  be  accomplished  by  declamation,  but  b}^  the 
exercise  of  the  reasoning-  faculties.     The  advocate 


any  kind  of  sickness  for  a  wlioleyear,  and  gives  him  in  addition  a  house 
to  live  in!'  The  twelfth  juror  was  so  impressed  with  the  novelty  of  this 
view  that  he  turned  round  to  hear  more.  He  came  round  in  fact  figura- 
tively and  actually,  and  the  landlord  got  a  verdict." 


METHODS  OF  SPEAKING.  185 

must  clear  away  not  only  the  theory  which  they  have 
constructed,  but  the  basis  on  which  it  rests.  Here  is 
work  for — first,  his  perceptive  faculties  and  then,  his 
argumentative.  And  bej'ond  question  he  must  clearly 
ascertain  what  their  idea  of  the  merits  of  the  case  is. 
Among  charlatans  this  process  would  be  called 
"thought-reading:"  with  advocates  it  is  merely  the 
exercise  of  common  sense — a  process  of  reasoning 
based  on  a  knowledge  of  human  nature. 

§  153.  Addressing  the  Jury  —  Winning  the  Master 
Mind  of  the  Jury. — A  skillful  and  experienced  ad- 
vocate will  quickly  perceive  the  master  mind  of 
the  jury,  and  to  him  he  will  first  address  himself. 
Nor  will  he  be  long  in  ascertaining  whether  he 
has  made  an  impression  or  not.  If  he  succeed, 
he  need  not  trouble  himself  very  much  about  the 
rest,  unless  there  are  those  on  the  jury  who  have 
prejudices  against  his  case.  If  there  are,  these 
prejudices  must  be  attacked,  and  if  possible  beaten 
down,  for  it  will  not  be  sufficient  to  enlist  the  intelli- . 
gence  of  one  or  two  minds  against  the  prejudices  of 
others.  Intelligence  and  prejudice  are  the  two 
master  influences  on  the  jury.  If  there  be  no  preju- 
dice the  advocate  wins  by  convincing  the  best  mind. 
If  he  cannot  gain  the  strongest  he  should  try  and 
secure  the  weakest,  for  if  he  succeed  here  he  will  not 
lose  his  case.  When  trumps  are  out,  the  weakest 
card  may  take  the  trick,  and  the  advocate  has  as  much 
right  to  win  with  an  uneducated  Hodge  as  with  a])hil- 
osophical  Mill.  The  jury  ai-e  there  for  him  to  gain 
over  to  his  side  if  he  can  bj'  fair  and  legal  argument, 
and  by  presenting  his  case  agreeably  to  their  minds 
and  sentiments.^ 

>  The  advocate  should  not  be  dismayed  at  seeing  the  eyes  of  one 
juror  closing  In  slumber  or  another  studiously  avoiding  his  gaze.  Let 
him  speak  clearly,  agreeably,  forcibly  and  with  a  deep  conviction  of  the 


186  AMERICAN   ADVOCACY. 

§  154.  Addressing  the   Jury  —  "Oratory"   Before   a 

Jury. — One  great  evil  to  avoid,  if  an  advocate  would 
be  understood  and  appreciated,  either  by  a  com- 
mon jury  or  a  special,  is  fine  talking.  Fine  lan- 
guage will  not  stand  the  wear  and  tear  of  an  ordi- 
nary nisi  })rius  contest,  and  nowhere  (except  in 
the  ears  of  a  romantic  female)  is  it  so  powerful 
and  effective  as  good,  well-chosen,  homely  words. 
It  is  as  unnatural  as  the  spangled  dress  of  the  ac- 
robat, and  as  utterly  unfitted  for  the  ordinary  busi- 
ness of  a  work-a-day  life.  One  has  often  seen 
advocates  mystify  their  meaning  in  phrases  which 
were  more  like  a  girlish  novelist's  hysterical  utter- 
ances than  the  sound  language  of  a  man  and  a 
scholar.  It  will  take  a  good  and  gifted  speaker  a 
long  time,  and  will  require  a  great  deal  of  practice, 
before  he  can  venture,  to  embellish  his  address  with 
the  figures  or  the  fancies  of  rhetoric;  indeed,  the 
most  gifted  and  the  most  finished  speaker  will  only 
use  them  in  a  limited  manner;  profuseness  of  orna- 
mentation, like  a  redundancy  of  words,  being  at  all 
times  more  calculated  to  obscure  the  meaning  than 
to  elucidate  it.  Above  all  things,  affectation  should 
be  avoided;  every  listener  detests  it,  and  cannot  help 
feeling  some  degree  of  contempt  for  the  person  who 
indulges  in  it.  Affectation  is  a  weakness  even  with 
strong  minds,  and  although  it  is  sometimes  tolerated 
in  a  clever  man,  it  is  never  admired;  when  an  ordi- 
nary individual  indulges  in  it  he  is — simply  despised. 
At  the  bar,  except  in  rare  cases,  the  higher  gifts  of 
oratory  are  out  of  place;  it  is  a  limited  field;  it  has  its 

truth  of  his  utterances,  and  it  may  be  said  of  him,  as  of  James  Scarlett 
(Lord  Abinger),  the  great  verdict  winner  of  England,  that  he  possesses 
a  machine  by  which  he  cwn  make  the  heads  of  jurors  move  vigorously 
up  and  down  in  the  plane  of  the  perpendicular,  while  his  adversaries 
have  only  an  imitation  device  which  induces  the  jurymen  to  move  their 
heads  slowly  from  side  to  side. 


METHODS  OF  SPEAKING.  187 

beaten  tracks,  and  along  these  men  must  travel.  Ora- ' 
tory  is  not  one  of  its  paths;  in  other  words,  attempts 
at  what  is  commonly  called  oratory  are  to  be  avoided. 
What  a  figure  an  advocate  would  present  who  should 
attempt  the  flights  of  Burke  or  Webster  in  a  "running 
down"  case!  The  Republic  is  not  at  stake  in  every 
trial;  and  a  pickpocket  ma}^  be  defended,  at  least  up 
to  conviction,  without  a  severe  onslaught  on  the  Con- 
stitution. 

^  155.  Forensic  Eloquence  —  Its  Value  and  Requi- 
sites.— Those  who  would  discourage  true  eloquence  at 
the  bar  fail  to  understand  what  it  means.  It  has  been 
defined  as  the  art  of  clothing  thoughts  in  language  and 
uttering  them  in  such  a  manner  as  is  adapted  to  pro- 
ducing conviction  or  persuasion.  Can  this  art  be  elim- 
inated from  forensic  discussion  with  advantage?  Will 
it  facilitate  the  business  of  the  courts,  and  save  time, 
to  disregard  those  rules  by  which  legal  points  are 
lucidly  stated  and  facts  are  impressively  presented? 

When  we  speak  of  eloquence,  we  do  not  refer  to 
words  without  ideas,  but  to  the  embodiment  of  ideas 
in  words  which  make  an  impression  commensurate 
with  the  thought.  The  immortal  lines  of  Shakespeare 
teach  us  what  undying  power  dwells  in  the  form  of 
words.  He  was  the  mastei'  of  expression,  and  h© 
showed  that  inspiration  is  discernible  not  only  in  the 
conception  of  the  idea,  but  in  the  shape  in  which  it  is 
presented  to  the  world.  The  power  which  gave  to 
airy  nothings  a  local  habitation  and  a  name,  united 
thought  and  phrase  in  an  indissoluble  union  and  res- 
cued even  the  commonpliR-e  and  the  trite  from  con- 
tempt and  neglect.  When  we  have  thoughts  to  con- 
ve3',  our  study  should  be  how  best  to  present  them  to 
the  world;  how  to  say  what  is  in  our  minds  so  that  it 
shall  impress  others  as  it  impresses  us.  To  be  clear, 
persuasive,  and  convincing — this  is  to  be  eloquent. 


188  AMERICAN   ADVOCACY. 

And  no  lawj^er  can  afford  to  be  without  this  art,  or 
need  be  apprehensive  that  the  study  of  it  is  time 
thrown  away. 

It  is  no  objection  to  the  study  of  real  eloquence, 
that  the  courts  are  now  so  hurried  that  judges  have 
no  time  to  listen.  There  is  no  record  of  any  period 
when  courts  were  not  pressed  for  time.  There  never 
was  a  period  when  judicial  haste  did  not  pause  to  lis- 
ten with  respect  to  a  well  stated  case.  The  object  of 
eloquence  is  to  command  attention  in  the  pressure  and 
haste  of  affairs.  To  arrest  attention — that  is  the  first 
step;  to  give  a  clear  description  of  the  point  at  issue,  is 
the  next  step;  and  to  advance  with  cogency  the  argu- 
ments in  the  speaker's  favor,  is  the  conclusion  of  the 
task. 

The  next  thing  to  observe  is  to  be  logical ;  without 
this  the  advocate  will  not  be  even  intelligible.  Some 
things  he  says  may  be  understood,  but  his  address 
generally  will  be  a  jumble  of  words  and  a  confusion 
of  ideas.  Of  course,  it  is  not  meant  to  imply  that 
the  plaintiff  must  put  both  sides  logically;  by  so 
doing  he  may  reason  himself  out  of  court.  It  is  his 
own  case  and  it  matters  little  whether  the  advocate  is 
addressing  an  educated  or  an  uneducated  audience: 
the  mind  is  a  reasoning  machine,  and  it  will  the  more 
readily  grasp  arguments  tliat  are  put  logically  than 
those  which  are  presented  with  unnatural  distortions 
of  premise  and  sequence. 

§  156.  Forensic  Eloquence  —  Genius  or  Hard  Work 
as  a  Requisite.  —  The  modern  decline  in  oi-atory 
is  often  mentioned,  always  deplored,  but  sel- 
dom accounted  for.  Political  campaigns,  together 
with  the  pulpit  and  the  bar,  afford  the  most  avail- 
able fields  for  the  cultivation  of  this  talent;  yet 
every  observer,  however  superficial,  knows  that 
the  best  living  representatives  of  these   three  de- 


METHODS  OF  SPEAKING.  189 

partments  of  public  speaking  are  not  the  equals 
of  Wendell  Phillips  or  Henry  Clay,  Matthew  Simp- 
son or  Henry  Ward  Beeeher,  Rufus  Choate  or  Dan- 
iel Webster.  This  deterioration  has  not  resulted 
from  any  radical  change  in  the  standards  of  public 
taste.  Were  Webster  to  appear  among  us  to-da}^  he 
would  draw  as  vast  audiences  and  sway  men  as  abso- 
lutely as  in  the  meridian  of  his  genius  and  power. 
The  real  explanation  is,  that  we  have  forgotten  the 
time-worn  truism,  ''''Poeta  nascitui\  orator  fit  ^'''^ — "The 
poet  is  a  poet  born,  the  orator  is  the  result  of  edaca- 
tion.''^  The  very  eminence  of  the  great  orators  of 
the  past  falls  in  with  our  natural  indolence  and 
seems  to  disprove  the  truth  of  this  adage.  We  see 
only  the  finished  production,  the  superb  oration.  We 
do  not  trouble  ourselves  to  look  behind  the  scenes 
and  see  how  this  grand  spectacle  was  created ;  the 
headaches  and  heartaches,  the  routine  labor  and 
painstaking  care  which  were  factors  in  its  composi- 
tion. We  have  no  difficulty  in  believing  that  the 
story  of  Aladdin's  lamp  was  all  a  fable  and  that  the 
vast  buildings  which  ornament  our  caj^itols  were 
built  prosaically  b}^  ordinary  men,  who  laid  beam 
upon  beam,  brick  upon  brick,  until  all  was  completed. 
We  may  even  understand  how  a  coral  reef  is  formed, 
not  in  an  hour,  but  through  centuries,  by  the  tireless 
working  of  minute  insects.  But  when  we  approach 
a  great  oration,  sermon  or  legal  argument,  we  are 
more  credulous  than  children  who  believe  the  tale  of 
Aladdin  with  as  firm  faith  as  they  accept  the  story  of 
Noah  and  his  Ark.  We  can  scarcely  conceive  that 
the  discourse  is  anything  less  than  the  ins])ired 
utterances  of  genius,  born  without  labor  and  spoken 
without  premeditation.  It  is  this  false  and  absurd 
idea  which  deters  men  from  cultivating  the  moderate 
ability  that  is  theirs  and  which  makes  great  orators 


190.  AMERICAN   ADVOCACY. 

rare.  Books  have  been  written  and  lectures  deliv- 
ered, attempting  to  show  how  the  art  of  oratory  may 
be  acquired,  but  the  subject  is  too  often  overlaid 
with  technical  rules  and  distinctions.  The  student 
is  bewildered  in  the  mass  of  details  and  readilj'  set- 
tles back  into  his  original  opinion  that  orators  are 
born  and  not  made.^ 


1  The  ordinary  lawyer  will  point  to  Eufus  Choate,  to  Daniel  Webster, 
to  Mat.  Carpenter,  to  Thomas  Erskine,  to  Charles  O'Conor,  and  attrib- 
ute their  success  as  advocates  to  inborn  genius,  rather  than  constant, 
diligent  effort.  But  a  glance  at  the  lives  of  these  great  men  will  con- 
vince one  of  the  vast  importance  of  hard  work  In  the  shaping  of  their 
successful  careers. 

Rufus  Choate  worked  harder  than  any  distinguished  American  law- 
yer and  advocate,  of  whom  we  have  a  record.  He  labored  faithfully,  to 
have  a  profound  knowledge  of  the  principles  of  law  and  of  the  current 
decisions  of  the  courts;  he  read  general  literature  and  the  classics,  to 
enrich  his  mind  and  improve  his  diction;  he  studied  the  dictionary,  to 
enlarge  his  vocabulary;  he  constantly  practiced  the  art  of  public  speak- 
ing, and  for  forty  years,  let  no  day  pass  without  drilling  himself  as  to 
tlie  proper  method  of  addressing  his  fellow  men.  He  concentrated  his 
mind  upon  the  trial  of  every  case  in  which  he  was  engaged,  and  whe;h- 
it  was  great  or  small,  devoted  the  whole  strength  of  his  intellect  and 
all  his  skill  and  energ}^  to  a  proper  presentation  of  it  to  court  or  jur}^ 
He  paid  close  attention  to  the  examination  of  witnesses,  and  made  co- 
pious and  exact  notes  of  their  testimony;  he  studied  the  notes  carefully 
during  the  intermissions  of  court,  so  that  he  might  utilize  them  the 
better  during  the  argument;  he  studied  the  faces  of  his  jurors  to  learn 
the  workings  of  tiieir  minds;  he  made  careful  preparation  during  the 
progress  of  the  trial  for  the  argument,  and  when  the  time  came  to  ad- 
dress the  jury,  labored  with  both  mind  and  body  to  convince  them  of 
the  correctness  of  his  position.  In  the  ardor  of  his  speech,  he  would 
frequently  come  down  on  his  heels  with  a  force  that  would  shake  the 
whole  courtroom. 

The  same  is  true  of  William  Pinckney,  one  of  the  most  remarkable  and 
distinguished  advocates  of  the  country.  He  was  indefatigable  in  his 
search  for  legal  knowledge.  "He  approached  every  new  case  with  the 
ardor  and  zeal  of  one  who  had  still  his  reputation  to  earn."  His  bio- 
grapher states  that.  ''He  was  never  satisfied  with  exploring  its  facts, 
and  all  the  technical  learning  which  it  involved.  In  preparing  his 
speeches,  whether  for  the  forum  or  the  senate,  he  was  equally  imsj^ar- 
ingoftoil.  All  bis  life  he  declaimed  much  in  private,  and  he  carefully 
premeditated,  not  only  the  general  order  of  his  speeches,  and  the  top- 


METHODS  OF  SPEAKING.  191 

§  157.  Forensic  Eloquence  —  Mental  Absorption  and 
Concentration.  —  Our  orator,  who  is  determined  to 
"speak  well,"  next  applies  his  mind  to  that  vital  part 
of  his  labor,  the  discovery  of  points  upon  which 
to  discourse.  It  is  an  unpardonable  affront  to  judges 
and    juries,    and   ruinous    to    the   reputation    of    a 

ic8  of  illustration,  but  also  the  rhetorical  embellishments,  which  last  he 
sometimes  wrote  out  beforehand.  To  supply  himself  with  these,  he 
noted  in  his  reading  every  allusion  or  image  that  could  be  turned  to 
use.  He  piqued  himself  on  his  critical  knowledge  of  the  English  lan- 
guage, of  whose  structure  and  vocabulary  he  had  a  minute  knowledge, 
if  not  a  thorough  mastery.  Being  mortified,  when  in  England,  by  his 
inability  to  answer  some  question  in  classical  literature,  he  resumed  his 
classical  studies,  and  put  himself  under  an  instructor  to  acquire  a  better 
knowledge  of  ancient  literature." 

Mat.  Carpenter  was  a  prodigious  worker  and  toiled  late  into  the  night 
while  engaged  in  his  cases.  Charles  O'Conor  was  a  marvel  of  indus- 
try, and  it  is  said  of  Emery  A.  Storrs,  that  in  the  "preparation  of  his 
legal  arguuients  before  a  jury,  it  was  his  custom  to  spend  the  entire 
night  while  the  trial  was  in  progress,  studying  all  the  eyldence  that  had 
been  presented  during  the  day." 

John  rhilpot  Curran,  the  distinguished  Irish  advocate,  is  a  good  ex- 
ample of  the  remarkable  results  to  be  obtained  by  patient,  persistent 
effort.  He  had  few  of  the  natural  attributes  of  a  forensic  orator.  He 
was  awkward  in  manner,  was  small  in  stature  and  had  poor  articulation. 
At  school  he  was  known  as  ''Stuttering  Jack  Curran."  On  account  of 
a  failure  in  the  first  speech  he  attempted  to  make  in  a  debating  society, 
he  lesolved  to  overcome  so  far  as  possible  his  natural  defects,  and  be- 
couie  a  public  speaker.  He  diligently  followed  a  course  of  literary 
studies,  and  became  passionately  fond  of  the  classics.  At  the  same  time 
he  studied  the  French  language  and  was  indefatigable  in  his  efforts  to 
perfect  himself  as  an  orator.  William  Matthews  says  of  him:  /-Con- 
stantly on  the  watch  against  bad  habits,  lie  practiced  daily  before  a 
glass,  reciting  passages  from  the  best  English  orator.s  and  authors. 
Speaking  often  in  debating  clubs  in  spite  of  the  laughter  which  his 
early  failure  provok'*d,  heatlastsurmoimted  every  obstacle.  'Jle  turned 
hii  shrill  and  stumbling  brogue  into  a  flexible,  sustained  and  finely 
modulated  voice;  his  action  became  free  and  forcible,  and  he  acijuired 
perfect  readiness  in  thinking  on  his  legs."  In  a  word  he  became  one  of 
the  most  elo<iuent  and  powerful  forensic  advocates  the  world  lias  seeB." 

A  furtlier  examination  into  the  lives  of  eminent  forensic  orators  must 
convince  us  that  the  average  trial  lawyer  can  greatly  improve  liis  skill 
as  an  advocate  by  diligently  endeavoring  to  euuilatethe  masters  of  the 
art.    It  is  more  largely  a  matter  of  industry  than  of  genius. 


192  AMERICAN   ADVOCACY. 

speaker,  to  rely  upon  vehemence  and  rhetoric  when 
substantial  questions  of  life  and  property  are  at  stake. 
Call  it  meditation,  invention,  construction  of  argu- 
ments, or  what  you  will,  it  is  the  frame  work  on  which 
all  else  depends.  It  consists  in  delving  to  the  heart  of 
one's  case  and  extracting  weapons  for  attack  and  arms 
for  defense,  jewels  and  gold  for  beauty  and  adorn- 
ment. But  without  one  great  prerequisite  the  advo- 
cate will  discover  nothing,  and  that  essential  is,  con- 
centration of  thought.  This  mental  absorption  must 
be  secured,  whether  by  practice  in  steady  reading 
and  thinking,  the  study  of  mathematics  or  the  writ- 
ing of  essays;  hut  it  must  he  secured.  If  the  mind 
plays  one  moment  and  works  the  next,  if  it  glides  off 
into  day  dreams  and  is  restive  until  it  ceases  from 
its  labor,  the  process  of  digging  into  the  subject 
will  yield  no  results.  The  treasure  often  lies  deep 
and  the  blows  of  the  pick  must  be  constant  and  per- 
tinacious, stroke  on  stroke,  time  after  time,  monot- 
onously and  stubbornly  in  one  specific  spot  until  it 
surrenders  its  riches.    . 

§  158.  Forensic  Eloquence — The  Value  of  a  Personal 
Inquisition. — A  glance  at  the  advocate's  theme  may  re- 
veal to  him  some  valuable  points  lying  upon  the  surface. 
He  should  observe  them  well,  distrust  first  appearan- 
ces and  be  fully  convinced  that  they  are  reliable  before 
he  accords  them  his  hearty  support.  When  the  sub- 
ject has  ceased  to  emit  its  superficial  gleams,  then 
commences  his  real  labor,  turning  up  the  soil  and 
hunting  for  the  shining  gold  lying  hidden  beneath 
facts  and  incidents  and  minute  details.  The  mind 
must  be  constantly  and  vigorously  aroused  by  a  S3^s- 
tem  of  catechising.  We  will,  if  the  case  involves  the 
constitutionality  of  a  statute,  ask  ourselves,  "Who 
are  the  parties  to  this  cause?  Does  the  fact  that  a 
foreigner    claims  a  right  under  the  United  States 


METHODS  OF  SPEAKING.  193 

Constitution  suggest  any  argument  to  us  in  support 
of  or  against  the  law?  How  has  the  person,  who 
claims  he  has  been  injured,  conducted  himself  with 
reference  to  this  law?  Did  he  assist  in  its  passage? 
Did  he  accept  benefits  under  it  which  make  it  unfair 
for  him  now  to  question  its  validit}^?  Has  he  in  any 
manner  occupied  a  position  inconsistent  with  the  one 
he  now  holds?  What  motives  actuate  him  in  attack- 
ing this  enactment?  Again,  when  was  the  law 
passed?  Was  it  at  a  time  when  party  feeling  ran 
high  or  national  disaster  seemed  imminent?  Was  it 
called  forth  by  some  sudden  emergency  or  was  it  the 
slow  growth  of  a  long-felt  need?  What  was  its  pedi- 
gree? Was  it  the  first  of  its  race,  or  had  it  a  lineage 
extending  back  througli  many  years  in  the  history 
of  state  legislation?  How  have  its  predecessors  been 
treated  by  the  courts,  the  legislatures  and  the  peo- 
ple? What  consequences  would  follow  if  the  law 
should  be  declared  invalid?  What  would  result  if  it 
were  upheld?  What  has  been  the  practical  opera- 
tion of  this  law?"  Thi'oughout  the  examination  of 
his  topic  he  must  hold  tenaciously  before  him  the 
ultimate  point  he  wishes  to  make,  namely,  that  the 
law  is  good  or  that  it  is  bad.  Whenever  he  loses 
sight  of  this  goal,  his  investigation  will  be  halting 
and  ineffectual. 

If  the  question  in  his  case  is  not  one  of  law,  but 
arises  upon  the  facts,  he  will  pursue  much  the  same 
method,  by  questioning  himself  freely  concerning 
the  parties  to  the  suit,  their  circumstances,  age,  sex, 
race,  financial  and  social  condition,  motives,  occupa- 
tion, education,  place  of  residence,  interest  or  lack  of 
interest  respecting  the  transaction  in  question.  From 
some  or  all  of  these  inquiries  he  may  derive  argu- 
ments to  establish  or  refute  the  point  in  issue.  Then 
he  will   turn  to  the  transaction  itself,  the  murder,. 


194  AMEBICAN   ADVOCACY. 

robbery,  contract,  boiler  explosion,  railwaj''  accident, 
slander  or  whatever  it  may  be.  He  will  ask  him- 
self when,  where  and  under  what  conditions  did  it 
occur?  B}^  what  means?  In  what  manner?  What 
were  its  effects?  Was  this  the  first  occurrence  of 
the  kind,  etc.  These  and  similar  questions  must  be 
put  until  the  capacity  of  the  case  as  a  well-sprino-  of 
proofs  is  exhausted.  It  does  not  follow  that  he  will 
employ  all  the  arguments  his  industry  or  ingenuity 
discover.  But  there  is  need,  first,  to  lay  all  of  them 
bare;  the  sifting  of  the  weak  from  the  strong  may 
readily  be  performed  at  a  later  stage. 

5^  1.59.  Forensic  Eloquence — How  to  Meet  an  Attack. — 
Thus  far  the  advocate  has  assumed  the  aggressive, 
but  this  is  only  half  of  his  duty.  He  is  attacked,  and 
must  refute  and  parry  the  arguments  of  his  adver- 
sary. Sometimes  the  case  itself  will  suggest  the  ar- 
guments of  law  or  of  fact  which  the  latter  will  prob- 
ably advance.  In  other  instances  the  advocate  will 
need  to  examine  the  facts  critically  from  his  stand- 
point to  determine  what  points  will  be  relied  on  to 
support  his  opponent's  contention,  and  prepare  to 
meet  them.  He  will  take  up  his  own  arguments,  one 
after  another,  and,  assuming  that  the  first  is  falla- 
cious, will  ask  what  answer  he  can  make  to  the  con- 
clusion drawn  therefrom  b}^  his  opponent.  In  still 
other  cases  he  will  be  forced  to  await  his  adversary's 
argument  to  discover  his  points,  and  reply  upon  the 
instant  as  well  as  he  can.  If  the  advocate  is  able  to 
show  that  a  certain  argument  of  the  opposing  counsel 
is  inconsistent  with  another,  that  it  is  inequitable  and 
should  not  lie  in  his  mouth  to  advance  a  third,  that  a 
fourth  point  makes  for  his  side  of  the  controversy 
rather  than  in  favor  of  the  opposition,  that  a  fifth  is 
not  supported  by  the  facts,  a  sixth  is  contrary  to 
.SDund  public  polic}^,  common  sense  or  the  decisions 


METHODS  OF  SPEAKING.  195 

of  the  courts,  and  that  a  seventh  is  against  the  spirit 
and  purpose  of  the  law,  he  will  render  invaluable 
service  to  his  client,  for  the  sapper  and  miner  are  as 
necessary  in  a  sie^e  as  the  footsoldier  or  artillery- 
man. 

§  160.  Forensic  Eloquence  —  Discussion  of  Adverse 
Authorities. — The  op[:-osing  counsel  will  cite  the  ad- 
judications of  the  courts  to  disprove  the  advocate's 
legal  position  or  to  establish  his  own.  The  advocate's 
duty  will  then  be  to  distinguish  his  authorities  from 
the  case  in  hand.  He  will  point  out,  if  the  facts 
justify  him  in  so  doing,  that  his  adversary's  cases  are 
the  decisions  of  inferior  tribunals;  are  not  recent;  do 
not  exhaustively  consider  the  point  in  question ;  the 
court  cites  few  authorities  or  none;  the  cases  have 
been  doubted  or  overruled  by  later  decisions;  they 
are  inconsistent  with  other  utterances  of  the  same 
court;  the  statements  bearing  upon  the  controversy 
at  bar  were  not  necessary  for  the  decision  of  the 
point  then  before  the  court  and  hence  are  mere  obiter 
dictn;  they  are  the  decisions  of  a  divided  court  in 
which  there  was  a  strong  dissent;  their  facts  differ 
in  a  material  regard  from  those  of  the  present  suit; 
the  case  was  a  political  decision  and,  being  the  out- 
come of  partisanship,  is  not  entitled  to  controlling 
weight;  it  was  decided  at  a  time  when  the  views  of 
the  public  differed  radically  from  those  of  the  pres- 
ent day,  and  the  case  is  therefore  no  longer  appli- 
cable to  our  times.  Finally,  if  none  of  these  avail 
the  advocate  should  boldly  declare  the  law  to  be 
erroneously  stated  in  the  decisions  cited  and,  appeal- 
ing to  the  sound  discretion  and  manly  independence 
of  the  court,  urge  the  judges  to  act  upon  the  question 
as  they  would  upon  an  original  inquiry,  untrammeled 
by  precedents  or  authority. 


196  AMERICAN    ADVOCACY. 

§  161.  Forensic  Eloquence — Order,  Arrangement  and 
Peroration. —  The  advocate,  still  holding  clearh'  be- 
fore him  the  ultimate  point  he  wishes  to  establish  or 
destroy,  and  with  an  array  of  lucid,  cogent  argu- 
ments derived  from  the  case  by  concentrated  in- 
spection, takes  the  next  step  towards  ''speaking 
well."  He  arranges  his  matter  in  the  best  possible 
order.  There  are  some  minds  so  logical  by  nature 
that  the}^  need  only  begin  the  composition  of  a 
speech  and  they  cannot  but  elaborate  their  argument 
according  to  the  most  telling  plan.  With  the  ma- 
jority of  men,  however,  there  is  need  of  a  written 
outline,  with  points  separately  numbered.  These 
must  be  transposed  and  re-transposed  until  the 
arrangement  appears  rational  and  forceful.  It  has 
been  aptly  said  that  in  every  discussion  there  is 
always  something  that  i»  naturally  firsts  and  it  is 
generally  true,  also,  that  there  are  always  arguments 
which  are  naturally  second,  and  third,  and  fourth. 
The  advocate  should  be  well  assured ;  the  probabili- 
ties are  that  the  order  of  arguments  and  points  which 
he  originally  frames  is  not  the  best  natural  order. 
His  mind  will  cling  to  a  wayward  fanc}^  for  its  first 
born  scheme  of  argument,  either  because  it  is  too  in- 
dolent to  change  its  plan  or  because  of  a  law  of  our 
being  that  whatever  is  new  is  likely  to  please  us.  He 
will  cause  himself  mental  pain  by  destroying  that 
outline  and  transposing  the  parts.  But  he  must  learn 
to  tyrannize  over  himself  and  buffet  these  predilections 
and  groundless^preferences  until  his  calm  and  delib- 
erate judgment  approves  of  the  arrangement  which 
he  has  adopted,  even  though  it  be  the  reverse  of 
his  original  scheme. 

Only  the  most  general  suggestions  on  arrange- 
ment can*  be  given,  for  every  cause  is  peculiar  to 
itself.      Some  delicate  and  very  natural  compliments 


METHODS  OP  SPEAKING.  197 

to  the  court  or  jury,  an  appropriate  reference  to  the 
importance  and  interest  attaching  to  the  case,  a  brief 
mention  of  the  persons  engaged  in  the  litigation  or 
of  the  place  or  time  of  the  trial,  may  be  the  first 
words  the  advocate  utters,  and  they  should  gradually 
glide  into  the  bodj-  of  his  discussion.  If  he  speak  after 
his  adversary,  a  strong  commencement  is  secured 
by  opening  with  the  sentiment  which  the  latter  used 
in  closing  or  with  one  emphasized  by  him  during 
his  argument,  turning  it  into  a  weapon  against  him 
and  thus  utilizing  it  both  as  an  introduction  and  an 
argument. 

In  marshalling  his  points,  the  advocate  should 
never  begin  or  close  with  one  that  is  weak.  While 
his  judgment  and  sense  of  propriety  must  determine 
the  procedure  in  every  instance,  as  a  general  rule  it 
is  better  to  place  doubtful  arguments  in  the  middle 
of  a  speech,  a  strong  point  at  the  beginning  and  the 
strongest  at  the  close.  The  feeble  ones  will  thus 
derive  strength  from  their  surroundings. 

The  advocate  should  not  hurl  at  the  judges  or  jury 
all  the  arguments  he  has  conceived.  He  should  let 
many  of  them  go,  especially  those  which  are  finely 
drawn,  schohistic  and  such  as  would  appeal  rather  to 
an  audience  of  students  and  professors  than  to 
plain,  practical  men.  If  he  do  not  dare  omit  his 
his  weaker  points,  then  mass  them,  project  them  in 
a  body,  one  after  another  in  quick  and  bi'illiant  suc- 
cession, that  they  may  obtain,  in  combination,  a  force 
and  effect  which  they  are  incapable  of  producing 
when  taken  singly. 

If  the  advocate  defend  against  an  attack,  his 
method  may  be  the  exact  reverse  of  that  suggested. 
He  may  se])arate  the  weak  arguments  advanced  by 
his  adversary  Jind  refute  them  one  by  one,  thus 
making  the  destruction  of  his  citadel  easier  when  all 


198  AMERICAN   ADVOCACY. 

the  redoubts  and  outposts  have  been  captured.  On 
other  occasions  the  advocate's  common  sense  may 
direct  him,  in  the  first  instance,  to  throw  all  his 
weight  upon  his  strongest  point  and,  having  beaten  it 
down,  take  up  his  minor  contentions  and  dispose  of 
them  with  greater  ease  and  dispatch.  Here,  as 
everywhere,  he  is  to  remember  that  the  order  in 
which  he  finally  arrays  his  arguments  is  not  always 
that  in  which  they  first  occurred  to  him.  It  is  the 
hefit  order  he  must  use,  not  the  easiest. 

In  closing,  it  is  well  for  the  advocate  to  sum  up  the 
entire  argument  upon  his  side  if  the  case  is  at  all  difiS- 
cult,  and  then  bear  strongly  upon  the  equitable  features 
of  the  controversy.  If  the  advocate  has  been  contend- 
ing for  the  letter  of  the  law  and  has  laid  stress  upon 
technical  or,  it  may  be,  hard  and  repellant,  arguments, 
he  should  demonstrate  to  the  court  or  jury  that  his 
position  involves  substantial  justice  and  fair  dealing, 
equity  and  good  conscience.  The  tribunal  will  be 
readier  to  give  credit  to  the  rest  of  his  discussion  if 
it  believes  that,  by  its  judgment  or  verdict,  mercy 
and  truth  may  meet,  righteousness  and  peace 
embrace. 

All  parts  of  the  argument  must  lead  naturallj^  and 
gradually  into  each  other.  Unless  for  effect,  there 
should  never  be  a  violent  and  abrupt  transition  in 
the  thought.  The  last  sentiment  the  advocate  has 
spoken  should  contain  within  it  the  germ  of  its  suc- 
cessor, and  melt  easily  and  agreeably  into  the  latter. 
This  is  acquired  only  through  practice;  but  if,  by  a 
voluntary  effort,  he  bring  his  mind  to  bear  upon  it 
while  he  speaks,  its  difficulties  will  soon  vanish. 

The  surest  and  simplest  methods  for  the  advocate 
to  master  the  art  of  perfect  arrangement  and  grace- 
ful transition  are  to  read  and  study  the  speeches  of 
great  orators,  and  to  compose  written  discourses  of 


METHODS  OF  SPEAKING.  199 

his  own,  appl34ng  the  foregoing  suggestions,  awk- 
wardly and  painfully  at  first,  no  doubt,  but  assidu- 
ously, until  they  come  unbidden  and  he  acquire  that 
"instinct  of  skill"  which  is  the  consummation  of  all 
study.  Having  then  said  the  things  which  the  sub- 
ject and  the  occasion  call  for  and  require,  having  said 
them  as  acceptably  as  he  may,  dealing  with  the 
salient,  the  strong,  the  vital  points  in  his  case,  aft^r 
thorough  preparation,  then  let  the  advocate  achieve 
as  he  may  the  proudest  and  richest  tropli}^  of 
court-room  oratory — and  simply  quit! 

§  162.  Elocution  —  Cultivation  of  the  Powers  of 
Speech. — Elocution  has  much  to  do  with  forensic  elo- 
quence. Elocution  is  the  art  that  deals  with  the 
manner  in  which  we  say  things.  In  our  matter  of 
fact  civilization  we  lay  so  much  stress  on  the  import- 
ance of  the  thing  said  that  we  care  nothing  for  the 
way  in  which  we  say  it.  We  ignore  the  art  of  elocu- 
tion as  useless  to  anyone  except  the  schoolboy  and 
the  theatrical  apprentice.  The  result  is  that  we 
have  lawyers  of  high  reputation  to  whom  it  is  any- 
thing but  a  pleasure  to  listen  when  they  are  ad- 
dressing a  court  and  jury.  ^ 

We,  of  course  would  not  advocate  the  cultivation  of 
an  unnatural  style  or  manner,  or  recommend  a  course 
of  study  which  would  rob  a  lawyer  of  his  individual- 

'  The  author  had  the  opportunity  of  attending  the  argiimAnt  of  the 
famous  suit  of  the  United  States  v.  The  Northern  Securitica  Conipanj 
which  toolc  place  In  the  United  States  Circuit  Court  of  Appeals  at  St. 
Louis  in  1903.  Several  of  the  attorneys  for  the  Securltifs  Company  and 
for  some  of  the  defendant  railroads  were  al>8olutely  monotonous.  Their 
expression  was  frightful.  They  ununl)l('d  their  words,  and  at  the  end 
of  a  long  and  involved  sentence  would  allow  their  voices  to  gradually 
die  away  Into  a  mere  whisper — a  very  common  error.  The  comparison 
of  these  dull,  impassioned  speeches  with  the  electrical,  sparkling,  well- 
delivered  address  of  United  States  Attorney  Hecic  must  have  impressed 
even  the  court  and  have  baa  something  to  do,  probahly.with  their  unan- 
imous decision  in  favor  of  the  government's  contention. 


200  AMERICAN    ADVOCACY. 

ity.  Artificiality  and  insincerity  are  to  be  avoided 
by  all  means.  But  is  there  any  good  reason  why  a 
lawyer  should  not  be  able  to  improve  b}^  instruction 
and  practice,  his  manner  of  addressing  courts  and 
juries,  and  at  the  same  time  retain  his  own  distinctive 
individuality  in  gesture,  tone  and  mode  of  utterance? 
Many  lawyers  are  familiar  with  the  "jury  voice." 
Some  lawyers  talk  to  a  jury  in  a  loud  tone  of  voice, 
usually  in  a  high  key,  and,  without  modulation,  goon 
monotonously,  to  the  end,  frequently  wearing  them- 
selves out,  as  well  as  the  jury.  What  a  distinct  advan- 
tage a  lawyer  with  a  good  voice  has!  When  properly 
handled,  how  it  pleases,  calms,  arouses  or  thrills! 
Unemotional  as  we  may  believe  ouselves  to  be  as  a 
class,  a  public  speaker  with  a  clear,  ringing,  well 
modulated  voice  can  cause  the  blood  to  course  through 
our  veins,  fill  us  with  love,  pity,  fear  or  hatred,  and 
impel  us  to  a  course  of  conduct  that  we  never  would 
have  followed  had  it  not  been  for  the  potent  charm 
of  the  human  voice.  If  such  results  can  be  obtained 
bj^  the  use  of  the  advocate's  vocal  powers  he  shall 
certainh^  at  times  be  able  to  win  a  doubtful  case  by 
the  manner  in  which  he  uses  his  voice.  ^ 


J  Demosthenes,  in  the  early  part  of  his  career,  complained  that  with 
the  utmost  endeavor  he  could  find  no  favor  with  the  people.  Satyrus, 
the  actor,  aslced  him  to  repeat  a  selection  from  Euripides  or  Sophocles. 
Demosthenes  complied,  and  then  Satyrus  recited  the  same  speech  in 
such  a  way  as  to  make  it  seem  marvelous  to  Demostlienes.  It  sounded 
like  an  entirely  different  speech.  Following  the  example  set  by  Saty- 
rus. and  exercising  ihe  most  painstaking  care,  he  soon  became  the 
greatest  orator  of  ancient  or  modern  times. 

Rufus  Choate  earnestly  recommended  the  study  of  elocution.  He 
made  this  statement  in  regard  to  it:  "Elocutionary  training  I  most 
highly  approve  of.  I  would  go  to  an  elocutionist  if  I  could  get  time. 
I  have  always,  even  before  I  first  went  to  Congress,  practiced  a  daily 
sort  of  elocutionary  culture,  combined  with  a  culture  of  the  emotional 
nature.  I  have  read  aloud,  or  rather  spoken,  every  day,  a  page  from 
Burke,  or  some  such  author,  laboring  for  two  things :  to  feel  all  the  emo- 


METHODS  OF  SPEAKING.  201 

§  163.  Elocution  —  Imitation     and     Affectations    of 

'Speech. — It  is  equally  necessary  to  warn  the  young 
advocate  against  a  very  common  and  fascinating 
error  —that  of  im  itation .  A  really  good  ad  vocate  has  a 
style  of  his  own,  and  an  individuality  which  would  be 
utterly  spoilt  were  he  to  attempt  to  blend  it  with  that 
of  another.  To  imitate  a  successful  man's  st3'le  is 
like  a  short  man  putting  on  a  tall  man's  coat.  How- 
ever well  it  fitted  the  one,  it  is  sure  to  look  ridiculous 
on  the  other.  St3"le  is_born  with  a  man  as  much  as 
his  mental  capacit}^  itself.  Nor  should  it  be  forgotten 
that  imitators,  as  a  rule,  adopt  the  failings  and  not 
the  excellences  of  their  models.  Affectations  of 
speech  and  mannerisms  are  what  generally  catch  the 
eye  of  the  imitator.  Besides  this,  imitations  are 
bad  in  themselves.  As  a  rule,  they  are  grotesque  rep- 
resentations and  little  more  than  burlesques  of  the 
original.  It  is  at  once  apparent  that  they  are  no  part 
of  the  imitator's  individuality,  however  well  they 
maj^  be  done.  It  does  not  of  course  follow  that  the 
best  advocates  are  not  therefore  to  be  accurately 
studied;  it  is  serv'le  imitation  that  is  to  be  depre- 
cated, not  the  careful  observance  of  the  graces  and 
excellences  of  the  best  men.  The  smooth,  unruffled 
demeanor,  the  courtes}',  the  polished  ease,  the  unex- 
aggerated  eloquence,  the  order  and  arrangement  of 
speeches,  the  skillful  and  subtle  modes  of  cross- 
examination,  the  fearless  independence  of  the 
masters  of  advocacy,  should  be  studiously  consid- 


tlono  of  !ndi)rnatlon.  sarcasm,  commiseration,  etc.,  which  were  felt  by 
him,  and  also  to  make  my  voice  tlexlbly  express  all  the  changes  of  pitch 
and  time,  etc.,  appropriate  to  the  fluctiiatlon  of  thought.  I  have  done 
this  In  my  room,  and  therefore  did  not  give  vent  to  loudness  or  vio- 
lence, but  found  great  range  of  tone  possible,  nevertheless.  I  con- 
stantly strove  also  to  make  my  tones  strong  and  full  and  the  throat 
well  opened.*' 


202  AMERICAN   ADVOCACY. 

ered.  But  wherever  there  is  an  extravagance  of 
style,  even  though  it  may  be  fascinating  in  the  ad- 
vocate to  whom  it  is  natural,  it  should  never  be  imi- 
tated. An  imitator  must  of  necessit}''  be  a  second  or 
third-rate  man,  and  is  generally  below  even  that.  At 
the  best  he  pla3^s  but  a  poor  part,  and  his  best  imita- 
tion does  him  the  least  credit. 

§  164.  Danger  of  Achieving  a  Reputation  as  a  Wit. — 
The  advocate  should  avoid  in  his  argument  all  attempt 
at  witticism.  Crack  no  jokes;  tell  no  funny  stories  in 
the  argument  of  the  case  to  court  or  jury.  The  ad- 
vocate  will  by  his  fun  and  levity  undoubtedly  enter- 
tain the  jury — possibly  the  court;  but  that  is  not 
what  he  is  there  for.  By  his  brilliant  flashes  of  wit, 
and  by  his  delightful  humor,  and  by  his  really  good 
stories — and  they  are  the  dangerous  ones — he  will 
excite  an  expectation  in  the  jury  for  more  fun  after  a 
while,  and  they  will  be  impatiently  waiting  for  some- 
thing funnier  still  further  on ;  while  it  is  to  the  doubt- 
ful questions,  the  questions  that  need  clearing  up, 
that  he  should  address  himself;  and  he  should  by  his 
own  seriousness  impriess  the  jury  that  to  him  and  to- 
his  client  that  case  is  a  matter  of  grave  and  serious 
"concern.  The  lawj'-er  who  achieves  a  reputation  for 
being  a  funny  man  is  doomed,  so  far  as  his  advocacy 
is  concerned;  just  like  the  sensational  preacher  is 
doomed  when  he  has  achieved  the  reputation  of  being 
sensational.  He  may  build  up  congregations,  but  he 
will  never  build  up  churches — never  did.  You  may 
win  the  applause  and  secure  the  verdict  of  that  un- 
sworn jury  that  sits  without  the  bar;  but  when  that 
sworn  jury  retires  to  the  jury-room  to  consider  his 
case,  it  will  be  the  weightier  matters  and  not  the 
"mint,  anise  and  cummin"  of  the  case  that  will  en- 
gage their  thought. 


METHODS  OF  SPEAKING.  203 

§  165.  Appropriate  Physical  Gestures  and  Facial  Ex- 
pressions in  Speaking.  —  Nothing  is  so  cold  and 
clammy  as  an  address  of  a  speaker  who,  sphynx-like, 
looks  at  3^ou  without  even  one  unnecessary  wink  of 
the  eyelid,  and  rolls  out  his  words  like  a  phonograph 
without  the  least  outward  evidence  of  feeling. 
Facial  expression  and  physical  gesture,  when  used 
naturally  and  appropriately  to  the  occasion,  are 
tremendously  effective  in  forensic  pleading. 

Appropriate  facial  expression  is  probably  the  most 
important  outward  evidence  of  feeling.  The  deep 
frown,  the  inquiring  or  sarcastic  flight  of  the  ej^e- 
brows,  the  fierce  gnashing  of  the  teeth,  the  con- 
temptuous curling  of  the  lip,  the  piercing  flashes  of 
the  eyes — all  these  and  possibly  many  other  equally 
effective  manipulations  of  the  facial  muscles,  ma}' very 
profitably  be  used  to  embellish  the  speech  of  the 
forensic  orator.  '■     Of  course  these  facial  expressions 


'  In  the  days  when  Henry  Clay  was  Ht  his  prime  as  a  lawyer  a  man 
was  once  being  tried  for  murder  and  his  case  looked  hopeless  indeed. 
He  had  without  any  seeming  provocation  murdered  one  of  his  neigh- 
bors in  cold  blood.  Not  a  lawyer  in  the  county  would  touch  the  case. 
It  looked  bad  enough  to  ruin  the  reputation  of  any  barrister.  'J'he 
man,  as  a  last  extremity,  appealed  to  Mr.  Clay  to  take  the  case  for  him. 
Every  one  thought  that  Clay  would  certainly  refuse.  But  when  the 
celebrated  lawyer  looked  into  the  matter  Ills  fighting  blood  was  roused, 
and,  to  the  great  surprise  of  all,  he  accepted. 

Then  came  the  trial,  the  like  of  whicii  was  never  seen.  Clay  slowly 
carried  on  the  case,  and  it  looked  more  and  more  hopeless.  The  only 
ground  of  defense  the  prisoner  had  was  that  the  murdered  man  had 
looked  at  him  with  such  a  tierce,  murderous  look  that  out  of  self- 
defense  he  had  struck  tirst.  A  ripple  passed  through  the  jury  at 
this  evidence. 

The  time  came  for  Clay  to  make  bis  defense.  It  was  settled  In  the 
rolnds  of  spectators  that  the  man  was  guilty  of  murder  in  the  flrst  de- 
gree. Clay  calmly  pro(;ee  ded,  laid  all  the  proof  before  them  in  bis 
masterful  way.  Then,  just  as  he  was  about  to  conchide,  he  played  bla 
last  and  mastercard. 

"Gentlemen  of  the  jury,"  he  said,  assuming  the  fiercest,  blackest 
look  and  carrying  the  most  undying  hatred  in  it  that  was  ever  seen, 


204  AMERICAN  ADVOCACY. 

must  be  natural  in  order  to  prevent  them  from  being 
ludicrous.  Some  advocates  twist  their  faces  into  so 
painful  a  grimace  when  the}'  address  a  jury  that  one 
would  think  the  weight  of  their  task  caused  them  phj^s- 
ical  torture.  Others  attempt  to  screw  their  features 
into  looks  of  supreme  contempt,  anger  or  scorn. 
It  is  not  every  one  who  can  convey  his  sentiments  by 
a  look.  The  face  takes  its  expression  from  the  feel- 
ings; and  an  advocate  can  no  more  give  it  a  natural 
look  which  does  not  spring  from  that  natural  source 
than  he  could  make  the  face  of  an  india-rubber  doll 
beam  with  pleasure.  It  is  only  hj  thoughtful  labor 
and  study  that  the  sculptor  can  obtain  an  expres- 
sion upon  the  marble  which  faintlj^  represents  the 
emotions.  It  is  quite  clear  every  one  is  not  artist 
enough  to  put  the  right  muscles  in  motion  to  produce 
a  corresponding  effect  upon  his  own  features  when- 
ever he  desires  it.  Attempts  of  this  kind,  there- 
fore, are  not  onl}'  ludicrous  but  foolish.  The  most 
certain  method  of  insuring  this  necessar}'  natural- 
ness in  expression  is  for  the  speaker  to  work  himself 
up  to  a  high  pitch  of  feeling  and  then  give  way  to 
every  impulse  that  naturally  suggests  itself  as 
a  proper  outlet  of  the  pent-up  fires  of  feeling  that 
have  been  kindled  within  the  breast.  But  it  must  be 
remembered  that  without  these  kindled  fires  of  feel- 

"gentlenien,  if  a  man  should  look  at  yon  like  this  what  would  you 
do?" 

That  was  all  he  said,  but  tliat  was  enough.  The  jury  was  startled 
and  some  even  quailed  on  their  seats.  The  judge  moved  uneasily  on 
his  bench.  After  fifteen  minutes  the  jury  filed  slowly  back  with  a  ''Not 
guilty,  your  honor."    The  victory  was  complete. 

When  Clay  was  congratulated  on  his  easy  victory,  he  said :  ''It  was 
not  so  easy  as  you  think.  I  spent  days  and  days  in  my  room  before  the 
mirror  practicing  that  look.  It  took  more  real  liard  work  to  give  that 
look  than  to  investigate  the  most  obtuse  case."' 


METHODS  OF  SPEAKING.  205 

ing  there  can  be  no  natural  facial  expression — indeed, 
there  cao  be  no  true  eloquence. 

Appropriate  gestures  are  a  very  strong  second  to 
appropriate  facial  expressions.  The  trembling,  quiv- 
ering frame,  the  heavy  stamping  of  the  feet,  the 
graceful,  undulating  movements  of  the  bod}-,  the 
direct  pointing  of  the  finger,  the  spectacular  flourish 
of  the  arms,  the  haughty  twist  of  the  head,  these 
and  many  other  graceful  and  forceful  movements  of 
the  body  and  its  appendages  can  be  made  very  effect- 
ive not  only  in  lending  emphasis  to  the  Arguments 
advanced  but  also  to  assist  wonderfully  in  making 
clear  to  the  hearer  the  exact  meaning  of  the  language 
with  which  the  speaker  has  clothed  his  thoughts.  Of 
course,  naturalnfis&is  as  noooooary  here  as  in  the  mak- 
ing of  proper  facial  expressions  although  its  absence 
is  not  so  dangerous.  Practice,  in  debating  societies 
or  elsewhere,  will  here,  as  in  everj''  other  desired 
achievement  in  life,  make  perfect. 


CHAPTER   XIV. 


LEGAL    ETHICS. 


§166.    General  Code  of  Ethics. 

167.  Code  of  Legal  Ethics. 

168.  Inviolability  of  the  Code  of 

Ethics. 

169.  To  What  Extent  Profession- 

al Conduct  is  Affected  by 
the  Code. 

170.  Methods  of  Enforcing  the 

Code. 

171.  The  Advocate's  Relation  to 

the  State  —  General  Con- 
siderations. 

172.  The  Advocate's  Relation  to 

the  Court  —  General  Con- 
siderations. 

1 73.  The  Advocate's  Relation  to 

the  Court  —  Attitude  To- 
wards the  Judge. 

174.  The  Advocate's  Relation  to 

the  Court— Attitude  To- 
wards the  Jury. 

175.  The  Advocate's  Relation  to 

the  Court  —  Attitude  To- 
wards his  Own  and  Oppos- 
ing Witnesses. 

176.  The  Advocate's  Relation  to 

the  Court — Should  an  Ad- 
vocate Practice  in  a  Court 
in  which  the  Ju(^ge  is  His 
Near  Kinsman, 


§177.  The  Advocate's  Relation  to 
the  Court — The  Imperson- 
ality of  the  Advocate. 

178.  The  Advocate's  Relation  to 

His  Client  —  The  Suprem- 
acy of  the  Client's  Inter- 
ests. 

179.  The  Advocate's  Relation  to 

his  Client  —  Is  Truth  a 
Higher  Obligation";:' 

180.  The  Advocate's  Relation  to 

to  His  Client  —  Defending 
One  Whom  the  Advocate 
Believes  to  be  Guilty. 

181.  The  Advocate's  Relation  to 

His  Client  —  Becoming  a 
Party  to  a  Fraud,  or  Main- 
taining Harassing  or  Op- 
pressive Litigation, 

182.  The  Advocate's  Relation  to 

His  Client  —  Use  of  Im- 
proper Methods  or  Intiu- 
ences. 

183.  The  Advocate's  Relation  to 

His  Profession  —  General 
Considerations. 

184.  The  Advocate's  Relation  to 

His  Profession  —  Attitude 
Towards  Oppos  ng  Coun- 
sel. 


§   166.  General    Code    of  Ethics.— The  term  "eth- 
ics" is  derived  from  the  Greek  word  "6^'A6>y,"  sig- 


LEGAL  ETHICS.  207 

iiif3ang  "custom  or  usage."  Ethics,  therefore,  as 
a  science,  is  in  its  generic  sense  a  study  of  the  origin 
and  authority  of  the  customs  and  usages  of  the  peo- 
ple of  any  particular  locality  in  matters  of  private 
duty  and  obligation.  Of  course,  in  a  metaphysical 
and  abstract  sense,  the  word  has  come  to  have  a  more 
extended  meaning  as  denoting  study  of  the  action 
of  the  mind  in  determining  what  is  wrong  and  what 
is  right  in  accordance  with  certain  standards  set  up 
and  established  b}-  the  collective  or  individual  con- 
science. Nevertheless,  for  our  purpose  the  original 
signification  must  be  kept  constantly  in  mind.  In- 
deed, in  the  study  of  any  phase  of  the  general  subject 
of  ethics,  this  conception  should  be  given  .more  or 
less  prominence.^  All  systems  or  '"schools"  of  ethics 
trace  the  origin  of  the  principles  of  conduct  which 
they  advocate  to  certain  customs  or  usages  of  tlie 
people,  except,  of  course,  such  S3^stemsas  are  founded 
upon  reasoning  purely  metaphysical,  in  which  case 
the  individual  sets  up  his  own  standard  or  "moral 
touchstone, "  artificial  or  otherwise,  bj''  which  he  de- 
termines the  right  or  wrong  of  any  particular  action. 
When  not  artificial  in  its  origin  this  "moral  touch- 
stone" of  the  individual  is  termed  "conscience."  The 
"collective  conscience,"  therefore,  of  a  community  is 
the  origin  of  the  particular  moral  customs,  usages  or 
moral  standards  of  that  communit}' ,  and  establishes 
the  code  of  ethics  or  rules  of  conduct  for  that  com- 
munity.   It  may  be  called  "public  opinion;"  but  what- 


•  "When  man  reaches  the  stage  of  philosophical  queitloning,  and 
•coinrnunefl  with  himself  concerning  morals  as  of  other  tilings  in  gen- 
eral, he  comes  to  the  tasic  with  morality  ready-made  and  in  full  op- 
eration. His  real  object  is  not  to  (ind  spccdlative  principles  and  deduce 
morality  from  them  as  if  morality  had  to  be  invented  for  the  tlrst  time, 
but  to  assign  principles  on  which  he  may  account  for  the  morality 
already  familiar  to  bim/'    Polloclc's  Essays,  208. 


208  AMERICAN  ADVOCACY. 

ever  called,  it  is  the  one  great  source  of  all  practical 
S3"steras  of  ethics,  etiquette  and  good  manners. 
Therefore  we  have  different  standards  of  morality  in 
different  communities,  the  variation  in  which  is  largely 
due  to  the  past  histor}^,  education  and  environment, 
of  the  people  composing  that  community'. 

§  167.  Code  of  Legal  Ethics. — For  the  same  reason 
that  different  communities  may  have  different  stand- 
ards of  moralit}^  in  general,  so,  also,  different  castes, 
guilds,  crafts  or  professions,  maj,  because  of  their 
peculiar  lines  of  work  and  the  inter-relation  and  asso- 
ciation of  their  members,  require  additional  stand- 
ards to  determine  the  propriety  and  morality  of  ac- 
tions and  transactions  peculiar  to  such  castes,  guilds, 
crafts  or  professions.^  The  profession  of  the  law  is. 
no  exception  to  this  rule.  The  code  of  legal  ethics  is 
that  system  of  rules  which  by  mutual  consent  is  ob- 
served by  members  of  the  legal  profession  as  the 
standard  by  which  to  determine  the  propriety  of 
their  conduct  and  relationship  toward  their  clients, 
the  courts  or  other  members  of  the  profession.  Of 
course  such  a  sj^stem  of  ethics  does  not  supplant  the 
general  code  observed  by  the  comraunit}'  as  a  whole. 
It  only  adds  to  Miese  standards  of  morality,  observed 
by  the  general  public,  additional  rules  of  conduct 
applicable  to  the  profession  of  law  and  its  peculiar 
relationships  and  duties. 

These  rules,  which  constitute  the  code  of  legal 


1  "A  craft,  or  profession,  from  Its  experience  and  observation,  estab- 
lishes certain  canons  of  ethical  import  and  makes  rules  for  tiie  guidance 
and  government  of  its  members.  Tlie  rules  n)ay  be  express  or  implied, 
and  it  is  immaterial  whether  they  be  written  or  unwritten.  Itissuffl- 
cinnt  that  they  have  received  a  general  assent  by  substantial  observance 
only.  They  then  become  binding  on  all  of  the  members,  and  derelic- 
tions therefrom  constitute  breaches  of  the  ethical  code."'  Warvelle's. 
Essays  in  Legal  Ethics,  p.  19. 


LEGAL  ETHICS.  209 

ethics,  are  as  a  general  rule  unwritten.  Some  states 
have  tried  the  experiment  of  codifying  the  rules 
relating  to  professional  ethics,  with  the  result  that 
they  have  experienced  the  difficulty  which  invariably 
attends  the  task  of  converting  abstract  ethical  prop- 
ositions into  concrete  forms  of  legal  expression.^ 
It  is  safe  to  expect  that  the  code  of  ethics  will  remain, 
like  the  British  constitution,  unwritten,  but  none  the 
less  inviolable  for  all  that. 

§  168.  Inviolability  of  the  Code  of  Ethics. — No  caste, 
guild,  craft  or  profession  is  iDossessed  of  a  code  of 
ethics  which  is  more  jealously  guarded  than  that  of 
the  profession  of  law.^  And  this  is  not  without 
reason.  No  profession,  not  even  that  of  the  doctor 
or  the  preacher,  are   as  intimate  in  their  relation- 

'  The  most  celebrated  coditication  of  the  principles  of  legal  ethics  is 
that  contained  in  the  oath  demanded  from  every  intended  practitioner 
of  the  law  by  the  canton  of  Geneva.    This  oath  is  as  follows : 

'•I  swear  before  God  to  be  faithful  to  the  Republic  and  the  canton  of 
Geneva;  never  to  depart  from  the  respect  due  to  the  tribunals  and  au- 
thorities; never  to  counsel  or  maintain  a  cause  which  does  not  appear 
to  be  just  or  equitable,  unless  it  be  In  defease  of  an  accused  person; 
never  to  employ  knowingly,  for  the  purpose  of  maintaining  tiie  causes 
contlded  in  me,  any  means  contrary  to  truth,  and  never  to  seek  to 
mislead  the  judges  by  any  artifice  or  false  statement  of  fact  or  law;  to 
abstain  from  all  offensive  personaliiv,  and  to  advance  no  fact  contrary 
to  tlie  honor  or  reputation  of  the  parties,  if  it  be  not  indispensable  to 
the  cause  with  which  I  may  be  charged;  not  to  encourage  either  the 
coDimenccment  or  the  continuance  of  a  suit  from  any  motive  of  passion 
or  interest;  not  to  reject,  for  any  consideration,  personal  to  uiysclf,  the 
cause  of  the  weak,  the  stranger,  or  the  oppressed.'' 

^  "Legal  ethics  may  be  distinguished  from  the  general  subject  in  that, 
while  a  violation  of  the  moral  code,  m  established  by  the  conventions 
of  society,  will  usually  result  in  nothing  worse  than  social  ostracism^ 
a  disregard  of  the  ethics  of  tlic  bar  may  result  in  professional  death. 
In  aocicty  men  arc  kept  within  bounds  by  no  stronger  a  force  than 
public  opinion,  but  in  the  legal  profession  a  summary  jurisdiction  Is. 
lodged  in  the  courts  to  discipline  offenders  against  good  morals  and 
good  conscience."  Warvelle's  Essays  in  Legal  Ethics,  p.  20. 
14 


210  AMERICAN   ADVOCACY. 

ship  with  the  people  as  that  of  the  lawyer.  To 
the  doctor  the  patient  discovers  his  physical  ail- 
ments and  symptoms,  to  the  preacher  the  com- 
municant broaches  as  a  general  rule  only  those  things 
that  commend  him  in  the  eye  of  heaven,  or  those 
sins  of  his  own  for  which  he  is  in  great  fear  of 
eternal  punishment,  but  to  his  lawyer  he  unburdens 
his  whole  life,  his  business  secrets  and  difficulties, 
his  family  relationships  and  quarrels  and  the  skele- 
tons in  his  closet.  To  him  he  often  commits  the 
duty  of  saving  his  life,  of  protecting  his  good  name, 
of  safe-guarding  his  property,  or  regaining  for  him 
his  liberty.  Under  such  solemn  and  sacred  respon- 
sibilities, the  profession  feels  that  it  owes  to  the 
people  who  thus  extend  to  its  members  such  un- 
paralleled confidence  the  duty  of  maintaining  the 
honor  and  integrity  of  that  profession  on  a  moral 
plane  higher  than  that  of  the  merchant,  the  trader 
or  the  mechanic.  And  having  the  power  to  maintain 
its  high  professional  standards  by  a  show  of  authority 
possessed  or  enjoyed  by  no  other  profession,  a  lawyer 
takes  his  professional  life  in  his  hand  when  he  vio- 
lates any  of  these  unwritten  rules  of  conduct  sus- 
tained b}^  the  overwhelming  sentiment  of  the  pro- 
fession and  strictly  and  summarily  enforced  by  the 
courts.  The  young  lawyer,  fresh  from  the  victories 
of  the  class-room  may  be  inclined  sometimes  to  be- 
coiSe  res^tless  jiridej*  the  limitations  imposed  upon 
hTm"Tyv  the  code  of  ethics  and  to  regard  them  as  an 
imposition.  It  is  only  when  it  is  explained  to  him 
that  his  profession  is  not  an  independent  one,  that 
its  members  are  mere  officers  of  the  court  and 
not  only  derive  all  their  authority  from  the  court  but 
are  subject  to  all  reasonable  orders  and  regulations 
imposed  upon  them  by  the  courts  and,  through  the 
courts,  b}^  the  profession  itself,   that  he  recognizes 


LEGAL  ETHICS.  211 

not  only  the  unreasonableness  of  his  objections  but 
their  futility  as  well.  Another  deterring  influence 
to  one  inclined  to  be  recalciti"int,  and  one  not  to  be 
lightly  estimated,  is  that  of  the  respect  and  good- 
will of  other  members  of  the  profession.  The  public 
very  wisely  rates  a  lawyer  by  what  his  professional 
brethren  think  of  him, and  an  advocate  who,  bj'his  un- 
professional tactics  and  conduct,  assiduously  invites 
and  cultivates  the  enmity  of  the  members  of  his 
own  bar,  will  very  quickly  hit  the  bottom,  and  stay 
there  among  the  "snitches"  and  vagabonds  of  the  pro- 
fession until  he  comes  to  himself,  and  by  circum- 
specting  his  conduct  and  courting  the  confidence  and 
respect  of  other  lawj-ers,  he  finally  ^ins  Jthe  place 
to  which  his  ability  entitles  him.  ^-*,  -^  ytt^^^  A.r-Ui 
i  169.  To  What  Extent  Professiohal  Conduct  is  Af- 
fected by  the  Code. — It  of  course  goes  without  saying 
that  a  lawyer  should  be  a  gentleman  and  a  good  citi- 
zen, but  for  violations  of  the  general  rules  of  etiquette 
or  even  for  violations  of  the  criminal  code,  unless  the 
provision  of  the  code  is  but  a  declaration  of  the  rule 
of  legal  ethic^  the  lawyer  is  not  responsible  or  an- 
swerable in  his  professional  capacity.  The  lawyer's 
responsibility  for  professional  misconduct  extends 
only  to  those  relationships  into  which  he  enters  by 
virtue  of  his  office,  but  as  these  I'elationships  are  so 
extensive  in  their  various  ramifications,  it  is  difficult 
to  put  a  definite  limit  on  the  applicability  of  the  code 
of  ethics  to  a  lawyer's  conduct  and  Jictions.     These 


'  "The  bar  has  a  rijjld  form  of  etir|iiettc  with  respect  to  many  trant- 
actlons.  A  violation  of  thin  form  l8  attended  only  by  a  loss  of  profea- 
•ional  standing.  At  flrst  blush  this  piinUhment  does  not  snein  very 
severe,  and,  because  its  effect  is  not  always  immediat;ely  apparent, 
many  men  are  induced  to  persist  in  practices  that  contravene  accepted 
standards.  Hut,  In  the  end,  tliere  is  scarcely  any  form  of  punishment 
that  can  compare  with  It."      Varvelle's  Essays  in  Legal  Kthlcs,  p.  49. 


212  AMERICAN  ADVOCACY. 

relationships  may  be  grouped  under  four  heads — (1) 
the  advocate's  relation  to  the  state;  (2)  the  advocate's 
relation  to  his  client;  (3)  the  advocate's  relation  to 
the  court;  (4)  the  advocate's  relation  to  his  profes- 
sion. The  statutes  in  most  states  provide  that  a 
license  to  practice  law  authorizes  the  advocate  ''to 
appear  in  all  the  courts  within  the  state  and  there  to 
practice  as  an  attorney  and  counselor  at  law,  accord- 
ing to  the  hum  and  customs  thereof^  for  and  during  his 
good  behavior  in  said  practice."^  By  the  term  "laws 
and  customs"  of  practice  is  meant  the  principles  of 
the  code  of  ethics  as  well  as  the  rules  of  court  pro- 
vided for  the  purpose  of  regulating  the  local  practice 
of  the  law. 

While  as  a  general  rule  the  private  life  and  char- 
acter of  the  advocate  are  not  called  in  question 
by  the  court  on  ethical  grounds,  at  least  as  to  par- 
ticular acts  of  misconduct,  still  where  an  advocate, 
by  repeated  and  deliberate  wrongdoing  in  his  pri- 
vate life  and  transactions,  gains  a  reputation  so 
damaging  as  to  injure  him  in  his  standing  before  the 
community  as  a  man  of  good  moral  character,  the 
court,  at  the  instance  of  the  profession  or  some 
proper  authority,  may  discipline  the  offender  or  cut 
him  off  entirely  from  the  ranks  of  the  profession.'* 

1  Eev.  Stat.  Mo.,  1899,  Sec.  4918. 

2  '-It  is  an  essential  condition  to  admission  to  practice  that  the  ap- 
plicant shall  be  a  man  of  good  moral  character.  The  primary  object  of 
this  is  to  maintain  a  high  standard  of  moral  excellence  in  the  profes- 
ei»n  and  conserve  the  ancient  dignity  of  the  bar.  This  being  true,  it  nec- 
essarily follows  that  this  essential  character  should  be  maintained  after 
admission,  and  when  the  conduct  of  the  licentiate  clearly  shows,  either 
that  the  court  was  deceived  at  the  time  of  his  admission,  or  that  there 
has  been  a  moral  degeneracy  since  that  time,  a  proper  case  for  disci- 
pline may  be  presented.''     Warvelle's  Essays  in  Legal  Ethics,  p.  47. 


LEGAL  ETHICS.  213 

§  170.  Methods  of  Enforcing  the  Code. — The  courts 
enforce  the  principles  of  professional  ethics  by 
summary  proceedings.  This"  jurisdiction  of  the 
court  seems  to  be  derived  from  the  general  super- 
visory and  disciplinary  power  which  a  court  exercises 
over  its  own  officers.  The  advocate  being  nothing 
more  than  an  officer  of  the  court — a  part  of  the  judi- 
cial machinery — is  under  the  immediate  control  of 
the  court;  as  much  so  as  any  other  part  of  the  judicial 
machinery. 

The  first  and  most  important  method  of  enforcing 
the  code  of  ethics  is  that  of  disbarment,  a  remedy 
that  absolutely  extinguishes  the  professional  life  of 
the  advocate.  This  remedy  is  the  most  severely 
radical  and  effective  of  all  remedies  and  is  adminis- 
tered only  in  cases  of  flagrant  disregard  of  profes- 
sional ethics  or  high  moral  dut}*.^ 

•  "It  ia  laid  down  in  all  the  books  in  which  the  subject  is  treated 
that  a  court  has  power  to  exercise  a  siiininary  jurisdiction  over  its  at- 
torneys to  compel  them  to  act  honestly  towards  their  clients,  and  to 
punish  them  by  line  and  imprisonment  for  misconduct  and  contempts, 
and,  in  gross  cases  of  misconduct,  to  strilic  their  names  from  the  roll. 
If  regularly  convicted  of  a  felony,  an  attorney  will  be  struck  off  the 
roll  as  of  course,  whatever  the  felony  may  Ite.  because  he  is  rendered 
infamous.  If  convicted  of  a  misdemeanor  which  imports  fraud  or  dis- 
honesty, the  same  course  will  be  taken.  He  will  also  be  struck  off  the 
roll  for  gross  malpractice  or  dislionesty  in  his  profession. *'  Bradley, 
.1..  in  Ex  parte.  Wall,  107  U.  S.  265.  27». 

In  Archbold's  Practice,  editions  by  Chitty,  p.  148,  it  is  said  :  "The 
court  will,  in  general  interfere  in  this  summary  way  to  strike  an  at- 
torney off  the  roll,  or  otherwise  pimish  him,  for  gross  misconduct,  not 
only  in  eases  where  the  iiiidconduct  has  arisen  in  the  course  of  a  suit, 
or  other  regular  and  ordinary  busini'ss  of  an  attorney,  but  where  it  has 
arisen  in  any  other  uiatter  so  connected  with  his  professional  character 
as  to  afford  a  fair  presumption  that  he  was  employed  in  or  intrusted 
with  it  in  c.jnHfMjuence  of  that  cliaracter." 

And  it  is  laid  down  by  Tidd  that  "where  an  attorney  has  been  fraud- 
ulently  admitted,  or.  after  admission,  had  been  convicted  of  felony,  or 
otheroffense  which  renders  him  unfit  to  be  continued  an  attorney,  or 
baa  knowingly  suffered  bis  name  to  be   made  use  of  by  an  unquallfled 


214  AMERICAN   ADVOCACY. 

Another  remedy  is  that  of  suspension.  This  is  but 
a  species  of  the  first  remedy;  indeed  suspension  is 
disbarment  for  a  definite  period  of  time.  It  is  a 
remedy  which  is  administered  in  cases  which  would 
hardly  justify  a  decree  of  disbarment. 

A  third  remedy  is  that  of  the  imposition  of  a  fine. 
This  is  a  very  effective  remedy  because  of  the  fact  that 
the  court  will  often  compel  the  guilty  party  to  work 
out  his  fine.  Another  method  of  discipline  is  that 
by  way  of  reprimand^  which  is  one  very  frequently 
administered. 

It  must  be  borne  in  mind  that  this  power  to  dis- 
cipline advocates  is  administered  not  for  the  sake  of 
punishing  the  offender — (the  criminal  courts  will  do 
that) — nor  merely  to  assert  the  dignity  of  the  court — 
(that  is  a  matter  that  comes  under  the  subject  of  con- 
tempts), but  to  assert  the  digniiy  of  the  profession 
and  vindicate  the  authority  of  the  ethical  code. 

§  171.  The  Advocate's  Relation  to  The  State— General 
Considerations. — To  the  state  the  lawyer  sustains  a 
most  intimate  and  important  relation.  To  him  is 
intrusted  the  enforcement  of  its  laws,  and  hardly 
anything  could  be  conceived  more  detrimental  to  a 
state  than  a  corrupt  and  antagonistic  bar.  Most  states, 
therefore,  require  that  one  appljing  for  a  license 
to  practice  law  shall  make  an  oath  to  support  the  con- 
stitution and  laws  of  the  state  and  of  the  United 
States. 

So  also  when  this  peculiar  relation  of  the  advocate 
to  the  state  is  taken    into  consideration,   it   would 


person,  or  acted  as  agent  for  sucli  person,  or  has  signed  a  fictitious 
name  to  a  demurrer,  or  otherwise  grossly  misbehaved  himself,  the 
court  win  order  him  to  be  struck  off  the  roll.'"     1  Tldd's  Practice,  89, 

The  above  quotations  evidence  the  indefinite  application  of  the  code 
of  ethics.  For  a  review  of  the  authorities  we  refer  the  reader  to  the 
celebrated  case  of  Ex  parte  Wall,  snpra. 


LEGAL  ETHICS.  215 

seem  incongruous  that  one  convicted  of  a  violation  of 
the  laws  of  a  state  should  be  permitted  to  remain  as 
an  officer  to  assist  in  the  enforcement  of  the  laws  he 
has  trampled  under  foot.  It  is  therefore  provided 
in  manj"  states  that  a  lawyer  convicted  of  a  felony  or 
an  infamous  crime  shall  be  disbarred  from  his  right 
to  practice  law.  This  is  also  the  rule  at  common 
law.^ 

Another  important  consideration  for  the  advocate 
to  remember  is  that  not  only  must  he  himself  not  vio- 
late the  constitution  or  laws  of  the  land,  but  he  must 
not^  assist  or  encourage  others  to  do  so.  If  he  do, 
he  commits  a  most  serious  breach  of  professional 
ethics,  and  in  severe  cases  may  be  suspended  or 
removed  from  practice.  Thus  it  has  been  held  that 
where  an  attorney  exhorted  a  mob  of  citizens  to 
take  the  law  in  their  own  hand  and  urged  them  to 
enter  a  jail  and  take  therefrom  a  prisoner,  against 
whom  the  jx)pular  mind  had  been  inflamed,  and 
lyncli  him,  such  attorney  was  liable  to  summai-y  dis- 
barment without  trial,  without  petition  and  on  the 
court's  own  motion.  ^ 

1  The  fact  that  the  crime  hag  been  condoned  does  not  affect  the 
case.  Thus,  In  a  case  before  Lord  Mansfield,  an  attorney  was  convicted 
of  theft,  and  the  crime  was  condoned  by  burning  in  the  hand.  The 
conrt  nevertheless  ordered  tiis  name  struck  frou»  the  roll.  "The 
question  is"  said  Lord  Mansfield,  '"whether,  after  the  conduct  of 
this  man,  it  is  proper  that  ho  should  continue  a  member  of  a  profession 
which  should  stand  free  from  all  suspicion.  *  *  *  It  is  not  by  way 
of  punishment;  but  the  courts  in  such  cases  exercise  their  discretion, 
whether  a  man  wliom  they  have  formerly  admitted  is  a  proper  person 
to  be  continued  on  the  roll  or  not.*' 

»  Ex  parte  Wall,  107  L'.  S.  2(jr).  In  this  case  it  appeared  that  on  a 
certain  day  an  attorney  tuol<  part  in  a  riotous  and  tumultuous  mob  who 
were  seeking  the  life  of  a  certain  person  charged  with  a  very  foul 
crime.  The  attorney  addressed  tiie  mob  in  excited  tones  and  advised 
and  urged  them  to  enter  the  jail  and  lynch  the  prisoner.  The  uiob  fol- 
lowed  bis  advice  and   bis  leadership  and   hung    the  prisoner.    Tlie 


216  AMERICAN   ADVOCACY. 

§  172.  The  Advocate's  Relation  to  the  Court — Gen- 
eral Considerations. — It  has  already  been  intimated 
that  the  work  of  the  advocate  is  not  entirely  an  in- 
dependent calling.  The  advocate  is,  in  truth,  merely 
ian  officer  of  the  court.  In  ancient  times  the  first 
licensed  practitioners  were  called  Servientes  Domini 
Begis  ad  Ugum — ''Servants  at  law  of  our  Lord,  the 
King."^  The  idea  contained  in  this  distinguished 
appellation  has  never  been  departed  from.  The 
American  lawyer  owes  hm  allegiance  to  his  state  and 
especially  to  the  state's  judicial  representative — the 

court,  of  its  own  motion  cited  tlie  attorney  tliiis  implicated  in  tiiis  ter- 
rible crime  to  appear  at  a  certain  time  and  show  cause  why  his  name 
should  not  be  stricken  from  the  roll.  After  the  hearing  the  court  entered 
judgment  striliing  the  name  of  the  delinquent  attorney  from  the  roll. 
In  affirming  the  decision  of  the  lower  court,  the  United  States  Supreme 
Court,  speaking  through  Mr.  Justice  Bradley,  said : 

'•Now,  what  is  the  offense  with  which  the  petitioner  stands  charged? 
It  is  not  a  mere  crime  against  the  law;  it  is  much  more  than  that.  It  is 
the  prostration  of  all  law  and  government;  a  defiance  of  the  laws; 
a  resort  to  the  methods  of  vengeance  of  those  who  recognize  no  law, 
no  society,  no  government.  Of  all  classes  and  professions,  the  lawyer 
is  most  sacredly  bound  to  uphold  the  laws.  He  is  their  sworn  servant; 
and  for  him,  of  all  men  in  the  world,  to  repudiate  and  override  the  laws, 
to  trample  them  under  foot,  and  to  ignore  the  very  bonds  of  society, 
argues  recreancy  to  his  position  and  office,  and  sets  a  pr rnicious 
example  to  the  insubordinate  and  dangerous  elements  of  the  body 
politic.  It  manifests  a  want  of  fidelity  to  the  system  of  lawful  govei-n- 
ment  which  he  has  sworn  to  uphold  and  preserve.'* 

'  "The  first  persons  regularly  licensed  to  appear  as  advocates  in  the 
king's  courts  were  called  'sergeants,' although  their  full  official  title 
seems  to  have  been  Servientes  JJomini  Begis  ad  leynm.  That  is, 'Ser- 
vants at  law  of  our  Lord,  the  King.'  Unlike  all  prior  advocates,  they 
were  a  part  of  the  court  itself;  were  regularly  appointed  by  royal 
patent;  were  aduiitted  only  upon  tnking  an  oath;  had  a  monopoly 
of  all  practice,  and  were  directly  amenable  to  the  king  as  parts  of 
his  judicial  system.  The  fundamental  ideas  involved  in  the  creation 
of  this  class  has  never  been  abandoned,  and,  notwithstanding  that  the 
class  itself  by  the  name  'sergeants'  has  ceased  to  exist,  they  are  still 
the  distinguishing  characteristics  of  the  bar  in  all  countries  where  the 
common  law  prevails."    Warvelle's  Essays  in  Legal  Ethics,  p.  '29. 


LEGAL  ETHICS.  217 

court,  whose  officer  he  is.  This  peculiar  rehition  is 
found  in  no  other  profession;  the  physician,  indeed, 
is  not  subject  to  any  tribunal  empowered  to  inter- 
fere with  and  regulate  his  practice  by  arbitrary 
rules;  and  even  the  preacher,  if  he  feels  the  restraint 
of  his  sj'nod  or  general  conference  to  be  too  exacting, 
may  go  out  as  a  free  lance  and  by  an  extravagant  and 
abusive  style  of  preaching',  which  would  not  be  tol- 
erated for  one  moment  in  a  court  of  law,  attract  to 
himself  a  large  following  and  incidentally  a  large  in- 
come. But  a  lawyer's  existence  depends  on  his  agree- 
able relations  with  the  court.  If  he  is  persona  non 
grata  with  that  tribunal,  his  business  as  an  advocate 
is  gone.  If,  therefore,  an  advocate  should  impugn 
the  integrity  of  the  court  or  bring  its  judgments  into 
disre])ute  he  raaj'  be  severely  reprimanded  and  pun- 
ished b}^  the  court  he  has  abused;  and  in  severe  cases 
he  may  be  disbai-red  from  practice.  Some  attorneys 
fail  to  appreciate  this  fact,  with  disastrous  results 
to  themselves.  They  seem  to  think  that  they  must 
be  guilty  of  some  crime  or  gross  unfairness  or  fraud 
against  their  client  in  order  to  justify  their  disbar- 
ment from  practice.  Undoubtedly  the  majority  of 
cases  arise  under  such  circumstances,  but  the  courts 
frown  equally  as  sternlj'  upon  actions  of  an  attorney 
that  bring  the  court  or  its  officers  into  disrepute. ' 
The  advocate,  therefore,  should  make  it  his  chief 
concern  to  uphold  the  integrity'  and  dignit}^  of  the 
court  before  his  client  and  before  the  public. 

In  this  connection  it  might  not  be  im])roper  to 
mention,  what  would  seem  only  too  evident  but  for 
its  not  infrequent  occurrence — that  to  tamper  with 
the  records  of  the  court  clandestinely  for  the  advo- 

'  People  V.  Goodrich,  79  III.  148;  People  v.  McCabe,  18  Colo.  188, 
32  Pac.  Rep.  28,  86  Am.  St.  Rep.  270. 


218  AMERICAN   ADVOCACY. 

cate's  own  advantage,  or  for  any  other  purpose,  is 
not  only  strictly  unprofessional,  but  will  render  the 
advocate  liable  to  be  summarily  dismissed  from  the 
profession/ 

^  173.  The  Advocate's  Relation  to  the  Court-  Atti- 
tude Towards  the  Judge. — When  the  barrister  enters 
the  court  room  he  is  morally  bound  to  act  fairly 
toward  the  court,  deceiving  it  neither  upon  the  law 
nor  the  facts,  quoting  authorities  truthfully  and  offer- 
ing no  garbled  extracts  nor  cases  known  by  him  to 
be  overruled.  He  will  accord  to  the  magistrate  that 
deference  which  the  office  demands,  irrespective  of 
the  man  who  fills  it;  a  degree  of  courtesy  not  easily 
attainable,  since  a  large  i^art  of  a  judge's  duty  is  said 
to  be  rendering  it  disagreeable  for  counsel  to  talk 
nonsense.  He  must  deal  openly,  not  attempting  in 
private  interviews  and  casual  encounters  to  preju- 
dice the  mind  of  the  judge  by  ex  parte  statements,  or 
to  insinuate  arguments  against  the  adversary  which 

J  People  V.  Murray,  16(5  111.  630.  In  this  case  it  was  held  that  where 
an  attorney  falsified  a  bill  of  exceptions  after  the  judge  had  signed  it, 
and  procured  the  clerk  to  certify  a  transcript  of  the  record  containing 
the  false  matters,  he  was  guilty  of  such  misconduct  as  would  empower 
the  supreme  court,  in  the  exercise  of  its  discretion,  to  summarily  strike 
the  name  of  such  aa  attorney  from  the  roll.  In  this  case  the  lawyer 
was  a  young  man  just  admitted  to  the  bar.  He  pleaded  ignorance,  but 
the  court  refused  to  listen  to  the  plea.  The  court  said :  "He  wa& 
twenty-seven  years  old,  had  had  charge  of  two  or  three  cases  in  the 
appellate  court,  and  made  abstracts  in  them,  had  studied  law  suffi- 
ciently to  be  admitted  to  the  bar,  and  must  have  known  the  uses  and 
objects  of  testimony.  *  *  *  But  if  his  testimony  is  true,  it  evidences 
a  want  of  moral  sense  which  would  render  him  incapable  of  appreci- 
ating and  discharging  the  duties  and  obligations  of  a  lawyer  toward 
the  courts.  If,  at  his  age,  and  with  his  experience,  he  cannot  discern 
the  necessity  and  propriety  of  observing  the  truth  and  not  imposing 
upon  the  courts  by  falsehood,  it  is  plainly  our  duty  to  protect  litigants 
against  such  practices  as  he  indulges  in,  although  he  may  not  think 
them  improper.  A  person  with  such  ideas  should  not  be  numbered 
among  the  members  of  the  profession  whose  duty  it  is  to  aid  in  the 
establishing  of  truth  and  the  administration  of  justice." 


LEGAL  ETHICS.  219 

the  latter  is  not  present  to  answer.  Toward  the 
judge  he  must  conduct  himself  with  the  utmost  def- 
erence, yet  with  firmness  and  a  due  regard  for  his 
client's  rights,  being  neither  overawed  by  the  judge's 
greatness  nor  filled  with  unconcealed  contempt  at 
his  ignorance.  If  an  advocate  is  called  to  face  some 
Jeffries  on  the  bench,  who  seeks  to  override  law  and 
lawyers,  he  should  remember  his  personal  dignity 
that  he  is  as  much  an  officer  of  the  court  as  is  the 
judge;  his  interest  in  the  case  and  his  client's  wel- 
fare; and  thus  emboldened,  stand  firm  with  the 
respectful  resolution  of  Erskine  when  he  braved  Lord 
Mansfield  and  pronounced  his  famous  arraignment 
of  the  Earl  of  Sandwich,  which  won  him  his  cause 
and  his  fame,  and  who  afterwards  said  that  he  dared 
speak  as  he  did  because  he  felt  his  little  children 
plucking  him  by  his  robe  and  saying,  "Now,  father, 
now  is  the  time  to  get  us  bread!"  The  advocate 
should  remember  that  the  judge  is  unfamiliar  with 
the  case,  and  with  much  of  the  law  pei'taining  to  it; 
that  his  special  preparation  i-enders  him  far  better 
acquainted  with  both  the  law  and  the  facts  than  is 
the  judge;  that  his  duty  is  to  assist  the  latter,  and  to 
that  end  to  take  nothing  foi*  granted;  he  is  to  watch 
for  signs  of  especial  interest  on  the  judge's  part,  and 
welcome  interruptions  which  show  at  what  points  he 
is  experiencing  difficulty. 

^  174.  The  Advocate's  Relation  to  the  Court— Atti- 
tude Towards  the  Jury. — Toward  the  jury  the  advo- 
cate's demeanor  should  be  manly  and  winning.  They 
must  be  treated  with  deference  and  no  slight  is  to  be 
cast  u\K)n  any  class  of  men  to  which  they  may  belong. 
They  will  not  resent  the  utmost  simplicity  of  st.ite- 
ment,  or  the  homeliest  explanation  of  the  law  and 
the  evidence,  but  if  they  conceive  the  advocate  is 
not  in  earnest  or  is  misleading  them,  they  will  do 


220  AMERICAN   ADVOCACY. 

the  most  embarrassing  thing  they  can  think  of, — 
take  out  their  watches  and  yawn  while  he  speaks. 
Look  at  them  as  individual  men,  not  as  '•'a  jur3\"  He 
should  know  something  of  their  separate  histories  if 
he  can,  and  make  them  his  confidential  friends  as  he 
stands  before  them  in  argument.  Look  them  straight 
in  the  face  with  an  earnest  "significant  look." 

Policy,  if  no  higher  incentive,  directs  the  lawyer 
to  preserve  a  strict  integrity  toward  the  jury,  neither 
misleading  them  by  falsel}^  colored  statements  of 
the  evidence  nor  by  loose,  ill-considered  propositions 
of  law.  Nor  will  he  testify  before  them  while  pur- 
porting to  advance  his  arguments.  He  will  recall 
his  oath  enjoining  upon  him  respect  for  the  court, 
and  he  will  never,  save  in  extreme  and  exceptional 
instances,  strive  to  set  against  each  other  the  judge, 
who  declares  the  law,  and  the  jurj^  who  must  apply 
it.  In  all  things  he  will  remember  the  admonition 
offered  four  centuries  ago  to  his  5^ounger  brethren 
by  one  learned  in  the  law:  "I  counsel  thee  that  thou 
do  nothing  against  truth;  if  thou  do  thus,  I  trust 
the  lantern,  which  is  th}'  conscience,  shall  never  be 
extincted." 

§  175.  The  Advocate's  Relation  to  the  Court — Atti- 
tude Towards  His  Own  and  Opposing  Witnesses. — In  his 
dealings  with  a  witness  upon  the  stand,  he  is  under 
no  obligation  to  examine  him  upon  all  phases  of  the 
controversy.  He  may  properlj^  assume  the  adver- 
sary will  develop  those  points  which  are  damaging 
to  the  opposite  party.  Nor  is  he  compelled  to  en- 
ter upon  subjects  which  the  witness  is  privileged, 
by  the  law,  to  conceal.  He  will  never  indulge  in  bra- 
vado and  insult  toward  those  testifying  with  evident 
fairness,  nor  will  he  be  brutal  in  investigating  the 
private  life  of  an  ingenuous  witness,  solely  for  the 
purpose  of  degrading  him  in  the  eyes  of  the  jury. 


LEGAL  ETHICS.  221 

The  true  barrister  will  also  scorn  the  practice  of 
distorting  the  language  of  the  testimony  by  his  argu- 
ment, or  putting  into  the  mouth  of  another  words 
and  sentiments  he  did  not  utter. ' 

No  less  reprehensible  is  it  to  approach  the  wit- 
nesses of  the  adversary,  or  the  adversary  himself, 
under  the  guise  of  friendly  interest  and  thereby  secure 
facts  in  the  case  which  would  not  have  been  divulged 
had  the  real  character  of  the  interlocutor  been  known. 
On  the  other  hand,  if  the  opposing  party  at  any  stage 
of  the  proceedings  seek  advice  from  his  antago- 
nist's attorney,  professional  ethics  require  an  out- 
spoken refusal  to  act  for  both  sides  of  the  contro- 
versy. Should  it  happen  that  the  attorney  who  is 
thus  approached  sees  it  is  advantageous  for  each 
party  that  a  given  course  be  pursued,  he  may  hon- 
estly comply  with  his  opponent's  request,  but  never 
if  the  interests  of  the  litigants  are  irreconcilable;  for 
either  he  will  betray  his  employer  or  practice  a 
deception  upon  one  who  consults  him  as  a  confidant, 
and  discovers,  too  late,  that  the  kisses  of  an  enemy 
are  deceitful. 

.  In  regard  to  improper  methods  of  procuring  wit- 
nesses to  testifj',  it  goes  without  saying  that  the 
bribery  of  opposing  witnesses  is  not  only  in  viola- 
tion of  the  code  of  ethics,  but  subjects  the  offender  to 


'  "An  advocate  should  not  descend  to  the  insidious  art  of  inducing 
a  witness  to  answer  with  one  meaning  and  assume  tiis  reply  to  bear 
another,  and  thus  lead  him  to  give  evidence  which,  intended  to  be  true, 
shall  liave  the  effect  of  falsehood.  Sucli  conduct  is  a  specits  of  crim- 
inal trickery  so  nearly  allied  to  subornation  of  perjurj-  that  it  is  dlffl- 
cult,  from  a  moral  point  of  view,  to  distinguish  between  them.  •  •  • 
No  lawyer  can  long  continue  in  the  practice  of  confusing  liie  honebt, 
browbeating  the  timid,  fMlsely  construing  the  words  of  a  witness,  or 
placing  in  his  mouth  words  ttiat  were  never  uttered,  without  acijulring 
the  character  of  a  trlclister.''  Warvelie's  Essays  in  Legal  Ethics,  p. 
109. 


222  AMERICAN   ADVOCACY. 

the  penalties  of  the  criminal  code  as  well.  Whether, 
however,  an  advocate,  in  order  to  persuade  a  witness 
favorable  to  his  side  of  the  controversy  to  be  in 
attendance  at  the  trial,  may  contract  to  pa}"  such 
witness  a  certain  sum  of  mone}',  does  not,  to  our 
mind,  admit  of  any  doubt.  We  can  conceive  of  no 
reasonable  objection  to  such  conduct.  It  does  not 
corrupt  the  witness,  but  merely  secures  to  him  a 
reasonable  compensation  for  his  trouble  in  place  of 
the  meaner  pittance  allowed  bj''  law.  Whether  a 
witness  may  be  offered  a  fee  for  his  testimony',  in 
addition  to  his  compensation  for  loss  of  time,  does 
not  seem,  at  the  present  time,  to  admit  of  much  doubt. 
The  public  as  well  as  the  profession  have  not  shown 
anj"  spirit  to  condemn  the  practice,  at  least  so  far  as 
expert  witnesses  are  concerned. 

^  176.  The  Advocate's  Relation  to  the  Court — Should 
an  Advocate  Practice  in  a  Court  in  which  the  Judge  is  His 
Near  Kinsman. — There  is  nothing  in  law  to  prevent 
an  advocate  from  practicing  in  a  court  over  which  his 
father  presides.  Nor  can  such  practice  be  construed 
strictly  unethical,  although  rules  of  legal  etiquette 
would  seem  to  interpose  an  objection.  The  reason 
that  neither  law  nor  ethics  make  any  protest  to  a  sit- 
uation of  this  kind  is  because  an  attorney  or  coun- 
sel in  a  suit  is,  in  theory,  presumed  to  have  no  per- 
sonal interest  in  the  event  of  that  suit,  and  that  his 
fee  is  not  contingent  upon  the  result;  that  he  is  re- 
garded as  disinterested  and  unchallengeable,  though 
he  may  be  of  near  kin  to  the  judge  presiding  at  the 
trial.  And  thus  there  is  no  recognized  positive  law 
which  is  held  to  exclude  an  attorney  or  counsel  from 
appearing  on  the  trial  of  a  cause  in  his  father's  court. 
The  objection  to  his  appearing  in  such  relation,  if 
any,  can  only  rest  upon  that  natural  bias  of  feeling 
and  s^'mpath}"  which  a  judge  is  supposed  to  enter- 


LEGAL  ETHICS.  223 

tain  towards  his  own  son  or  brother,  or  other  near 
kinsman,  who  maj'^  have  charge  of  a  cause  in  his 
court — an  interest  which  he  is  not  supposed  to  have 
toward  the  opposite  counsel  who  is  not  so  related  to 
him.^ 

A  judge  placed  in  such  circumstances  may  be 
strong  enough  todisobej^  the  feelings  and  affections 
of  his  nature,  and  may. conduct  the  trial  of  the  cause 
with  absolute  blindness  to  the  parties  and  their  coun- 
sel, and  with  indifference  as  to  the  result  of  the  case, 
but  if  the  efforts  of  his  kinsman  in  court  should  be 
successful,  there  would  naturallj^  be  clamor  and  scan- 
dal raised  by  the  losing  part}'  and  his  sympathizers 
against  the  integrity  and  impartiality  of  the  court, 
which  would  affect  public  opinion  and  impair  public 
confidence  in  the  judiciary.^ 

'  "To  illustrate  this  principle"  says  John  F.  Hagenian  in  14  Cent. 
L.  J.  268,  "take  the  case  of  a  young,  struggling  lawyer  who  is  retained 
in  a  suit  involving,  if  he  succeeds,  a  million  of  dollars  to  bis  client,  and 
to  himself  an  enormous  fee,  besides  a  reputation  which  is  equivalent  to 
a  fortune.  Brilliant  success  in  a  celebrated  case  has  often  lifted  a  law- 
yer from  obscurity  to  eminence  in  his  profession.  Now  place  this  young 
man  with  such  a  suit  in  a  court  in  which  bis  near  liinsman— his  father, 
for  example,  is  the  judge,  and  assume  such  judge  to  be  a  man  of  rare 
purity  and  honor  in  life — a  model  man.  Yet  he  is  not  a  model  uian  if 
he  is  destitute  of  natural  affection,  or  sympathy  stronger  than  a  mere 
bias  for  the  success  and  upbuilding  of  the  reputation  and  fortune  of  his 
own  son.  Is  it  not  easy  to  see  that  in  the  trial  of  the  cause,  and  in  tlie 
charge  to  the  jury,  especially  in  arraying  and  commenting  upon  the 
testimony,  the  judge  would  likely  be  warped,  (piite  unconsciously,  and, 
it  may  be,  with  great  subtlety,  giving  his  otticial  influence  to  secure  a 
verdict  favorable  to  the  side  which  his  son  had  espoused?  In  questions 
of  pure  law  there  is  not  so  much  danger  from  the  partiality  of  the  judge 
because  his  rulings  can  be  reviewed  before  a  higher  tribunal  when  his 
reputation  will  be  involved.  But  in  questions  of  fact  at  ni»i  priua,  there 
is  scope  for  a  strong  partiality  without  any  corrective  inlluence." 

*  .John  F.  Hageman  in  the  article  from  which  we  have  (|Uoted  in  the 
former  note,  gives  some  prominent  illustrations  of  the  recognition  of 
this  rule.  He  says:  '4t  is  to  avoid  even  a  suspicion  of  partiality  that 
•ome  judges  of  great  delicacy  of  honor  have  been  unwilling  that  their 


224  AMERICAN   ADVOCACY. 

It  may  be  urged  that  judges  are,  and  should  be, 
above  the  suspicion  of  partiality  or  bias  under  all 
circumstances,  without  regard  to  personal  friend- 
ship or  natural  affection  so  far  as  the  members  of  the 
bar  are  concerned.  Whether  this  is  so  or  not,  the  law- 
yers do  not  assume  it  to  be  so,  even  in  cases  where- 
the  judge  is  of  the  most  exalted  character  for  honor 
and  integrit3\  And  if  it  were  known  how  severelj'- 
the  practice  is  condemned  by  the  bar  and  the  public,, 
and  what  scandal  attaches  to  it  in  many  cases,  no 

Bons,  or  other  near  kinsmen  should  practice  in  their  courts.  Judge 
Roosevelt,  of  New  York,  twenty-five  years  ago.  was  an  example  in 
point,  and  no  member  of  the  New  York  bar  or  bench  was  more  re- 
spected for  his  fine  sense  of  professional  honor  than  he.  Another 
illustrious  example  among  the  members  of  the  New  York  bar  was 
found  in  James  T.  Brady,  who  was  recognized  as  the  soul  of  honor. 
Whien  his  brother.  JohnR.  Brady,  became  judge  of  the  Common  Pleas 
in  the  City  of  New  York,  James,  solely  because  of  his  relationship  to 
the  judge,  abstained  from  that  time  from  all  practice  in  his  brother's 
court,  though  he  was  offered  large  fees  to  make  motions  in  that  court. 
At  the  Philadelphia  bar  we  had  an  illustrious  example  in  tlie  Uni- 
ted States  District  Court,  over  which  Judge  Cadwallader  presided  for 
many  years.  His  son,  John  Cadwallader,  was  an  honorable  member  of 
that  bar,  but  he  never  practiced  in  his  father's  court,  although  his 
business  there  w»uld  have  been  very  remuneradve  on  account  of  bank- 
ruptcy proceedings  therein.  The  judge  suggested  to  his  son  the  pro- 
priety of  his  confining  his  practice  to  other  courts;  and  during  the  en- 
tire judicial  life  of  the  judge,  both  he  and  his  son  adhered  with  scru- 
pulous fidelity  to  this  principle  of  professional  delicacy  and  judicial 
ethics.  And  their  conduct  in  this  respect  elicited  tiie  warmest  com- 
mendation of  the  bar. 

There  are  doubtless  many  other  similar  instances  in  the  various 
states,  which  are  not  very  generally  known.  And  there  are  also,  per- 
haps, many  more  cases  of  the  other  class,  in  which  no  regard  is  paid 
to  the  relationship  of  the  attorney  to  the  judge;  or  rather,  such  rela- 
tionship is  often  the  ground  on  which  multiplied  retainers  are  given  to 
an  attorney  in  the  court  of  his  father  or  near  kinsman.  These  retain- 
ers are  generally  understood  to  be  given,  not  because  of  his  ability  or 
experience,  but  simply  because  of  his  kindred  relation  to  the  court. 
His  business  increases;  his  briefs  multiply;  large  corporations  select 
hiui  for  counsel,  though  they  already  have  older  and  superior  men  re- 
tained and  depended  upon.'' 


LEGAL  ETHICS.  225 

judge  who  respects  his  office  and  his  honor  would 
subject  them  to  such  aspersions. 

§  177.  The  Advocate's  Relation  to  the  Court  —  The 
Impersonality  of  the  Advocate. — One  of  the  common- 
est faults  of  the  young  and  inexperienced  lawyer  is 
to  thrust  himself  too  prominentl}"  into  his  case,  mak- 
ing his  own  honor  and  veracit}'  an  issue  to  the  total 
exclusion  and  obscurity  of  his  client.  This  is  not 
only  unwise,  but  highly  unprofessional.  A  lawyer  is 
an  advocate — one  who  speaks  for  another.  He  is  not 
to  protrude  his  own  personality;  and  to  the  extent  he 
does  so,  he  either  cheats  his  client  or  unfairlj^  in- 
fluences the  court  or  jury  in  his  favor,  depending 
upon  the  fact  whether  he  is  a  man  of  little  or  great 
influence.  In  either  case  he  acts  unprofessionally. 
Many  a  lawyer  has  proceeded  to  the  trial  of  a  cause 
on  the  assumption  that  he  was  identified  with  the 
merits  of  the  cause  of  his  client.  This,  we  scarcelj'' 
need  point  out,  is  an  entirely  erroneous  view  of  the 
functions  of  the  advocate.  He  is  the  representative 
of  the  interests  of  his  client,  and  not  the  guarantor 
of  the  righteousness  of  his  cause;  it  is  his  duty  to 
argue,  and  not  to  judge.  He  has  no  more  right  to 
say  that  his  client  is  not  guilty  than  to  say  he  is 
guilty.  A  counsel  in  a  criminal  trial  who  expressed 
his  personal  belief  in  the  innocence  of  the  prisoner 
would  be  guilty  of  a  rare  departure  from  one  of  the 
best  recognized  traditions  of  the  bar.  Very  seldom 
has  this  elementary  rule  of  advocacy  been  broken 
without  an  emphatic  protest  being  made.  When,  for 
instance,  in  the  celebrated  Pabntv  Vase^  in  England, 
Sergeant  Shee  asserted  his  i^ersonal  belief  in  the 
prisoner's  innocence,  Sir  Alexander  Cockburn  re- 
buked him  by  saying  that  he  "had  better  have  ab- 
stained from  making  any  observations  which  involved 
the  assurance  of  his  own  conviction j"  and  condemned 

16 


226  AMERICAN   ADVOCACY. 

the  expression  of  his  individual  opinion  as  "strange 
and  unprecedented."  The  impersonality  of  counsel 
is  the  fundamental  principle  of  advocacy.  ^ 

1  The  practical  effect  of  a  disregard  of  this  rule  of  ethics  was  brought 
out  conspicuously  in  a  criminal  trial  before  Mr.  Justice  Herrick,  of  the 
Supreme  Court  of  New  York,  in  which  the  learned  justice  in  his  charge 
to  the  jury  severely  arraigned  both  the  counsel  for  the  state  and  for  the 
defendant  for  expressing  to  the  jury  their  "personal  belief"  as  to  the 
guilt  and  innocence,  respectively,  of  the  accused.  Justice  Herrick 
said:  "Perhaps  it  is  well,  gentlemen,  before  we  come  to  consider  this 
case,  to  brush  away  some  of  the  things  that  have  no  business  in  it. 
Each  counsel  that  you  have  observed  here  has  proclaimed  his  belief; 
the  one  that  of  the  innocence  of  his  client,  and  the  other  the  guilt  of 
the  man  he  is  prosecuting.  You  will  not  take  that  into  consideration  for 
a  moment.  It  is  a  grossly  unprofessional  thing  for  a  lawyer  to  state  to  a 
jury  what  his  belief  is.  Counsel  of  experience,  reputable  counsel,  never 
indulge  in  it.  These  gentlemen,  when  they  get  older  and  have  more 
experience  and  have  paid  more  attention  to  the  efTrit!s  of  the  profession, 
I  think,  will  not  indulge  in  that  sort  of  thing.  They  carry  no  weight; 
it  is  the  unsupported  statement  oT  men.  They  are  placing  themselves" 
for  credit  and  standing  in  the  community  before  you  without  the  sanc- 
tion of^m_oaili._that  any  witness  presents  in  a  case.  You  have  no  right 
to  consider  it  for  a  moment,  excepting  as  an  indication  that  the  counsel 
have  not  risen  to  the  best  standing  of  their  profession."  To  many  this 
public  denunciation  of  the  methods  of  counsel  in  this  case  will  be  con- 
sidered too  severe,  and  so  it  may  be.  And  yet  it  cannot  be  doubted 
that  it  will  be  a  wholesome  lesson  to  the  attorneys  themselves  as  well 
as  to  others  who  might  in  the  future  fall  into  this  same  error. 

The  sentiments  expressed  by  Hon.  George  F.  Hoar  in  a  recent  arti- 
cle in  referring  to  this  practice  are  very  pertinent.  He  says:  "It  is 
not  the  duty  of  an  advocate  nor  his  right  to  express  or  convey  his  indi- 
vidual opinion.  On  him  the  responsibility  of  the  decision  does  not  rest. 
He  not  only  has  no  right  to  accompany  the  statement  of  his  argument 
^ith  any  assertion  as  to  his  individual  belief,  but  I  think  the  most 
experienced  observers  will  agree  chat  such  expressions,  if  habitual,  tend 
to  diminish  and  not  to  increase  the  just  influence  of  the  lawyer.  There 
never  was  a  weightier  advocate  before  New  England  juries  than  Daniel 
Webster.  Yet  it  is  on  record  that  he  always  carefully  abstained  from 
any  positiveness  of  assertion.  He  introduced  his  weightiest  argument 
with  such  phrases  as  'It  will  be  for  the  jury  to  consider.'  'The  court 
will  judge.'  'It  may,  perhaps,  be  worth  thinking  of,  gentlemen,'  or 
some  equivalent  phrase,  by  which  he  kept  scrupulously  off  the  ground 
which  belonged  to  the  tribunal  he  was  addressing." 


LEGAL  ETHICS.  227 

Whether  an  advocate  should  permit  himself  to  be  a 
witness  in  his  own  case  might  be  a  question  of  some 
doubt  under  rare  circumstances.  As  far  as  the  law 
is  concerned  there  seems  to  be  no  objection  to  it.  ^ 
However,  from  the  standpoint  of  professional  eti- 
quette, the  practice  is  to  be  sternly  discountenanced. 
If  it  is  necessary  for  an  attorney  to  appear  in  a  case 
as  a  witness  he  should  observe  the  proprieties  of  the 
situation  and  withdraw  as  an  advocate. 

§  178.  The  Advocate's  Relation  to  his  Client— The 
Supremacy  of  the  Client's  Interests. — The  association 
of  lawyer  and  client  is  as  confidential  as  that  between 
clergyman  and  penitent,  more  intimate  than  that 
existing  between  doctor  and  patient.  It  requires 
of  the  attorney  not  a  surmise  concerning  the  rights 
of  one  soliciting  his  advice,  but  an  honest,  intelligent, 
unprejudiced  opinion,  the  result  of  painstaking  ex- 
amination into  the  facts  and  the  law  applicable  to  the 
particular  case,  even  though  the  lawyer  realizes  he  is 
counselling  against  his  own  pecuniary  interest.  He 
will  resolutely  abstain  from  hurrying  the  client  into 
doubtful  or  hopeless  litigation,  but  will  sink  beneath 
his  consideration,  himself,  his  ambition  for  fame,  his 
love  of  wealth,  his  eagerness  for  conflict,  and  hold 
tenaciously  before  him  only  his  client's  welfare.^ 
When  once  he  has  undertaken  the  battle  for  another, 
his  moral  duty  commands  that  he  bring  into  play 
every  resource  of  mind  and  heart,  leaving  no  legiti- 

I  Morgan  v.  Roberts,  38  111.  66;  Frear  y.  Drinker,  8  Pa.  St.  621. 


'  "An  attorney  at  law  ought  not  to  accept  a  retainer  in  a  case  when 
he  believes  that  the  law  is  against  bis  client.  It  is  not  bis  duty,  in 
order  to  subserve  the  interest  of  bis  client,  to  misstate  tbe  law  and  the 
facta,  and  if  be  is  satisfied  that  tbe  client  cannot  recover,  except  by 
perversion  of  tbe  law  and  tbe  facts,  the  attorney  ought  not  to  take  the 
CMC.''    Per  Beck,  J.  in  Smith  v.  Railroad  (Iowa),  16  N.  W.  Rep.  291. 


228  •     AMERICAN   ADVOCACY. 

mate  argument  untouched,  no  investigation  untried 
and  that  he  make  himself  master  of  the  situation. 

§  179.  The  Advocate's  Relation  to  his  Clieut— Is  Truth 
a  Higher  Obligation? — The  devotion  to  a  client's  in- 
terests never  obscures  the  advocate's  recognition  of 
a  higher  obligation  to  the  cause  of  truth.  If  he  be 
employed  by  one  who,  with  a  perverted  sense  of  right, 
asks  his  attorney  to  stoop  as  low  as  the  client  himself 
would  descend,  two  alternatives  are  open  to  the  lawyer 
of  integrit}'";  either  to  require  honesty  from  his  em- 
ployer or  to  withdraw  from  the  case.  Lord  Brougham 
maintained  that  an  advocate  should  consider  no  one 
except  his  client,  for  whom  he  must  be  reckless  of 
consequences,  resorting  to  all  means  and  expedients, 
disregarding  the  alarms,  the  torments,  the  destruc- 
tion of  others,  and  even  bringing  confusion  upon  his 
country  if  this  were  essential  to  success;^  but  a  far 


1  The  extraordinary  language  used  by  Lord  Brougham  in  a  very 
celebrated  case,  which  has  misled  many  an  inexperienced  advocate,  and 
is  calculated  to  mislead  a  great  many  more,  to  the  danger  of  their  un- 
fortunate clients  as  well  as  the  peril  of  their  own  prospects,  is  as  fol- 
lows : 

"There  are  many  whom  it  may  be  needful  to  remind  that  an  advo- 
cate— by  the  sacred  duty  of  his  connection  with  his  client — knows,  in 
the  discharge  of  that  oftTce,  but  one  person  in  the  world — that  client 
and  none  other.  To  serve  thait  client  by  all  expedient  means,  to  protect 
that  client  at  all  hazards  and  costs  to  all  others  (even  the  party  already 
injured),  and,  amongst  others,  to  himself,  is  the  highest  and  most  un- 
questioned of  his  duties.  And  he  must  not  regard  the  alarm,  the  suf- 
fering, the  torment,  the  destruction,  which  he  may  bring  upon  any 
others.  Nay,  separating  even  the  duties  of  a  patriot  from  those  of  an 
advocate,  he  uiust  go  on,  reckless  of  the  consequences,  if  his  fate  should 
unhappily  be  to  involve  his  country  in  confusion  for  his  client." 

Although  some  of  the  terms  of  this  sweeping  proposition  might  be 
assented  to,  and  especially  in  the  circumstances  which  gave  them  utter- 
ance, there  is  surely  much  that  an  honorable  man  would  shrink  from, 
even  though  he  gave  full  scope  to  the  meaning  of  the  word  "expedient." 
In  the  impetuosity  of  advocacy  such  as  Biougham  was  stirred  up  by  the 


LEGAL  ETHICS.  229 

higher  plane  of  professional  conduct  was  reached  by 
the  late  Charles  T.  Russell,  of  Massachusetts,  of 
whom  it  was  said  that,  when  retained  by  a  client  who 
had  no  conscience,  Russell  gave  him  one.  Thus  will 
it  be  with  every  barrister  who,  in  assuming  the  re- 
sponsibilities of  his  calling,  remembers  his  duty  as  a 
man. 

So,  also  is  truth  not  only  a  higher  obligation  but  a 
more  profitable  course  as  well  in  answering  the  argu- 
ments or  evidence  of  one's  opponent.  What  is  the  use 
of  an  advocate  endeavoring  to  prejudice  the  cause  of 
his  opponent  by  saying,  "Gentlemen,  I  don't  say  that 
the  defendant  has  obtained  these  goods  by  false  pre- 
tenses, but  I  say  his  mode  of  dealing  will  not  com- 
mend itself  to  your  minds?"  This  is  a  trick — an 
impoverished  one,  it  is  true;  but  so  would  every 
other  trick  seem  if  we  were  to  write  it  down.   Look  at 


occasion  to  employ,  It  might  have  been  excusable  to  use  such  language; 
but  if  it  be  examined  its  propositions  can  scarcely  be  assented  to. 

An  advocate  can  hardly  claim  a  higher,  privilege  than  his  client  could 
claim  for  himself  were  he  defending  his  own  cause.  Would  he  be  per- 
mitted to  disregard  the  suffering,  the  torment,  the  destruction  which  he 
might  bring  upon  others?  And  under  what  circumstances  could  the 
expediency  of  bringing  down  such  overwhelming  calamities  arise?  If 
it  could  never  be  expedient,  all  the  rest  of  the  sentence,  with  its  cata- 
logue of  evils,  might  have  been  left  out.  If  it  could  be  expedient, 
when? 

An  advocate  should  be  tender  of  the  feelings  of  others,  although 
engaged  in  the  "sacred  duty  of  his  connection  with  his  client;*"  and 
above  all  things  he  ought  to  he  the  guardian,  and  not  the  destroyer, 
of  private  character;  he  should  observe  the  golden  rule  of  "'doing  unto 
others  as  he  would  be  done  by,"  nor  should  he  lose  or  suspend  the  feel- 
ings of  a  Christian  and  a  gentleman;  he  xAomM  regard  "the  alarm,  the 
Buffering,  the  torment,  the  destruction  which  he  may  bring  upon  others." 
"To  serve  his  client"  may  be  "his  highest  duty  as  an  advocate,"  but  it 
is  yet  hoped  it  will  not  cause  him  to  forget  his  duties  as  a  man,  or  pre- 
vent him  from  abandoning  a  cause  which  he  can  only  win  by  dishon- 
orable means.  Besides  this,  an  advocate  who  casts  destruction  broad- 
cast may  involve  bis  client  in  the  general  ruin,  and  is  sure  in  any 
event  to  injure  him  in  the  estimation  of  the  jury. 


230  AMERICAN  ADVOCACY. 

the  following:  "I  don't  think  much  of  such  and  such 
a  transaction,  or  the  fact  that  the  defendant  did  or 
said  so  and  so.  I  merely  call  your  attention  to  it  in 
passing."  These  are  devices  which  do  not  approach 
to  the  pretensions  of  art,  and  are  unworthy  of  a  good 
speaker.  They  are  not  the  truth — hot  the  words  of 
sincerity;  and  when  an  advocate  has  neither  truth 
nor  sincerity,  although  he  may  have  acting,  he  cannot 
have  the  highest  and  best  speaking.  Truth  and  sin- 
cerity are  among  the  charms  and  graces  of  eloquence, 
and  they  are  the  power  that  stirs  and  impresses  an 
audience.  It  must  not  be  understood  that  there  are 
not  two  ways  of  presenting  a  sound  proposition  or 
an  incontrovertible  argument.  Truth  and  sincerity 
themselves  may,  in  an  uncultured  and  inartistic 
speaker,  be  made  to  look  absolutely  offensive,  and 
not  onh^  to  look  so,  but  to  be  so.  Therefore  it  is 
necessary,  if  an  advocate  would  impress  his  hearers, 
that  art  should  come  to  the  aid  of  reason;  the  same 
idea  and  the  same  truth  may  be  conveyed  in  coarse 
as  well  as  cultured  language.  One  need  not  say  in 
which  it  will  be  transmitted  most  effectively;  but  the 
tricks  referred  to  are  apart  from  both,  and  partake 
more  of  the  style  appropriate  to  the  conjurer  at  a  fair 
than  to  an  advocate  speaking  at  the  bar.  Noth- 
ing, therefore,  contributes  so  powerfully  to  the 
success  of  a  lawyer  as  a  reputation  for  veracity  and 
straightforwardness.  Let  the  court  and  jury  come 
to  suspect  that  the  advocate  has  a  serious  impedi- 
ment in  his  veracity;  in  other  words,  let  them  once 
lose  confidence  in  him  as  a  man,  in  his  word  and  in 
his  sincerity,  and  he  might  just  as  well  sit  upon  the 
counsel  table  and  fiddle  for  that  court  and  jury  as  to 
talk  to  them.  No  matter  how  profound,  no  matter 
how  sound,  no  matter  how  logical,  no  matter  how 
powerful  otherwise  his  argument  may  be,  it  will  be 


LEGAL  ETHICS.  231 

vain;  and  his  adversary,  if  he  be  a  man  in  whom  the 
court  and  jury  have  confidence,  who  has  so  deported 
himself  in  his  practice  that  they  believe  him  to  be  an 
honest,  sincere  and  truthful  man,  has  a  vast — it  may 
be  an  overpowering — advantage  of  him. 

§  180.  The  Advocate's  Relation  to  His  Client — De- 
fending One  Whom  the  Advocate  Believes  to  be  Guilty. — 
Whether  the  attorney  may  undertake  the  suit  of  one 
whom  he  believes  to  be  in  the  wrong,  is  a  question 
not  admitting  of  an  unqualified  answer.  If  he  be 
called  upon  to  defend  a  criminal  who  privately  con- 
fesses to  the  commission  of  the  offense,  he  may  still 
a<icept  the  employment  with  a  clear  conscience,  in- 
forming his  client  that  he  will  oppose  all  unwarranted 
attacks  and  will  see  that  no  injustice  is  done  the  ac- 
cused. Even  the  hunted  beast  has  some  rights  in 
the  chase,  and  guilty  men  must  be  convicted  by  the 
law,  not  in  defiance  of  it;  otherwise  gross  wrong  is 
committed  to  attain  a  right  result.  Nor  can  counsel 
always  be  ag^y^  that  the  confessed  murderer  is,  in 
fact^guilty.  Mental  derangement,  a  mistake  of  facts, 
the  coercion  of  another,  a  desire  to  draw  on  himself 
the  punishment  justly  due  to  a  friend  or  a  relative, 
may  render  the  confession  worthless.  The  counsel 
is  not  to  establish  himself  as  a  court  for  the  trial  of 
every  man's  case,  for  the  law  presumes  innocence 
and  not  guilt.  Its  indulgence  to  the  culprit  declares 
that  even  the  judge  shall  be  his  advocate,  but  it  does 
not  permit  his  advocate  to  be  his  judge.' 

*  Laymen  not  Infrequently  charge  the  lawyer  very  unjustly  for  per- 
mitting his  services  to  be  retained  in  defending  some  noted  criminal 
toward  whom  the  public  mind  is  wildly  inflamed  and  whom  he  may 
believe  to  be  guilty.  It  has  been  a  ditticult  task  of  the  profession,  in 
standing  up  for  its  privileges  and  duty  in  this  regard,  to  convince  the 
public  that  no  lawyer  has  tlie  right  to  injure  his  fellowman's  defense  by 
judging  his  case  without  trial.  No  better  argument  has  ever  been  ad- 
vanced than  that  offered  by  Lord  Ersklne  in  vindicating  himself  from 


232  AMERICAN  ADVOCACY. 

§  181.  The  Advocate's  Relation  to  His  Client— Be- 
coming a  Party  to  a  Fraud,  or  Maintaining  Harassing 
or  Oppressive  Litigation. — Very  different  is  it  where 
the  maintenance  of  his  side  of  the  controversy  in- 
volves a  reliance  upon  forged  documents,  perjured 
testimony,  the  enforcement  of  a  fraudulent  claim, 
the  concealment  of  property  from  lawful  creditors, 
or  the  collection  of  a  debt  already  paid  in  full  to  his 
client.  Here,  instead  of  acting  as  a  faithful  keeper  of 
his  client's  conscience,  the  advocate  is  expected  to  be- 
come a  party  to  a  positive  wrong,  and  no  professional 
requirement  constrains  him  thus  to  compromise  him- 
self. Not  squeamishly,  but  with  rugged  honesty,  he 
must  decide  in  every  case  whether  the  side  soliciting 
his  assistance  is  so  palpably  unjust  that  no  reasona- 
ble man  would  hesitate  to  stigmatize  it,  or  whether 
there  may  be  a  debatable  question  upon  the  merits  of 
the  cause. 


the  public  odium  which  attached  to  him  by  reason  of  his  defense  of 
Thomas  Paine.    The  great  barrister  said : 

"In  every  place  where  business  or  pleasure  collects  the  public  to- 
gether day  after  day,  my  name  and  character  have  been  the  topic  of 
injurious  reflection.  And  for  what?  Only  for  not  having  shrunk  from 
the  discharge  of  duty  which  no  personal  advantage  recommended,  and 
which  a  thousand  difficulties  repelled.  *  *  *  *  Little,  indeed,  did 
they  know  me,  who  thought  that  such  calumnies  would  influence  my 
conduct.  I  will  forever,  at  all  hazards,  assert  the  dignity,  independence 
and  integrity  of  the  English  bar,  without  which  impartial  justice,  the 
most  valuable  part  of  the  English  constitution,  can  have  no  existence. 
From  the  moment  that  any  advocate  can  be  permitted  to  say  that  he 
will  or  will  not  stand  between  the  crown  and  the  subject  arraigned  in 
the  court  where  he  daily  sits  to  practice,  from  that  moment  the  liberties 
of  England  are  at  an  end.  If  the  advocate  refuses  to  defend  from  what 
he  may  think  of  the  charge  or  of  the  defense,  he  assumes  the  character 
of  the  judge — nay,  he  assumes  it  before  the  hour  of  judgment;  and  in 
proportion  to  his  rank  and  reputation,  puts  the  heavy  influence  of 
perhaps  a  mistaken  opinion  in  the  scale  against  the  accused,  in  whose 
favor  the  benevolent  principle  of  English  law  makes  all  presumptions, 
and  which  commands  the  very  judge  to  be  his  counsel. "j 


LEGAL  ETHICS.  233 

Nor  is  an  attorney  under  obligations  to  minister  to 
the  malevolence  or  prejudices  of  a  client  in  the  trial 
or  conduct  of  a  cause.  He  is  therefore  expected  in  a 
civil  cause  to  decline  to  conduct  a  prosecution  when 
satisfied  that  the  purpose  is  merely  to  harass  or 
injure  the  opposite  party,  or  to  work  oppression  and 
wrong.  Nor  is  he  to  abuse  the  process  of  the 
court  in  order  to  compel  a  settlement  of  a  demand.^ 
Nor  should  he  take  a  case  which  presents  an  oppor- 
tunity to  take  advantage  of  the  defenseless  or  op 
press  those  in  financial  disaster.^ 


1  An  interesting  illustration  of  the  frequent  violation  of  tliis  rule  is 
given  by  Mr.  Warvelle  in  his  excellent  work  entitled  "Essays  in  Legal 
Ethics,'"  at  p.  125: 

"The  matter  under  discussion  finds  frequent  examples  in  connec- 
tion with  justice  courts  and  other  tribunals  of  limited  jurisdiction. 
Thus,  the  law  gives  to  justices  of  the  peace  a  concurrent  jurisdiction 
throughout  the  country.  This  fact  is  frequently  taken  advantage  of 
by  unscrupulous  practitioners  to  harass  and  annoy  persons  against 
whom  they  may  have  demands,  and  process  is  issued  and  made  return- 
able at  distant  parts  of  the  county  and  at  inconvenient  hours.  It  often 
happens,  in  such  cases,  if  the  defendant  answers  the  summons,  tliat 
the  plaintiff  falls  to  appear,  and  the  case  is  dismissed,  only  to  be  com- 
menced again  in  the  same  manner,  and  is  so  continued  until  finally  a 
'snap'  judgment  is  entered  by  default.  This  is  distinctly  an  abuse 
of  process,  a  rank  perversion  of  the  machinery  of  the  law,  and  a  deg- 
radation of  judicial  functions,  but  while  it  violates  the  canons  of  ethics 
it  Infracts  no  legal  rule,  and  the  remedy,  therefore,  lies  only  In  the  forum 
of  conscience." 

*  "An  attorney  who  will  take  advantage  of  a  defenseless  woman,  say 
a  woman  In  straitened  circumstances,  or  oppress  the  fatherless,  or 'grind 
the  faces  of  the  poor,'  for  the  sake  of  lining  his  own  purse,  has  no  pre- 
tense for  his  practices,  either  in  law  or  in  eciuity.  Such  conduct  Is  In- 
iquitous and  disreputable.  The  law  Is  dishonored  by  such  officers." 
W.  E.  Glanvllle,  Ph.  D..  In  S  Green  Bag,  p.  209. 

An  incident  from  the  life  of  Abraham  Lincoln  serves  as  an  appro- 
priate Illustration  of  the  rule  of  ethics  now  under  consideration.  A 
stranger  called  on  Lincoln  and  desired  to  retain  his  services. 

"State  your  case,"  said  Mr.  I^lncoln.  The  man  did.  Then  Lincoln 
Mid: 


234  AMERICAN   ADVOCACY. 

§  182.  The  Advocate's  Relation  to  His  Client— Use 
of  Improper  Methods  or  Inflnences.  —  The  services 
which  an  advocate  has  for  sale  are  le^al,  not  moral 
nor  social.  It  is  absolutely  against  professional  eth- 
ics for  an  advocate  to  sell  his  moral  or  personal  in- 
fluence in  a  community  and  label  it  legal  services. 
If  he  desires  to  sell  such  influences  let  him  leave 
the  profession  of  the  law  and  become  a  lobbyist  or  a 
go-between  or  a  promotor  of  any  and  all  kinds  of 
schemes,  but  let  him  not  disgrace  by  such  methods 
a  profession  which  exists  only  for  the  purpose  of  en- 
forcing the  law  and  whose  only  methods  of  offense 
and  defense  are  reason  and  justice. 

Of  course,  an  attorney  may,  openly  and  in  his 
true  character,  render  purely  professional  services 
before  committees  regarding  proposed  legislation, 
and  in  advocacy  of  claims  before  departments  of 
the  government,  upon  the  same  principles  of  ethics 
which  justify  his  appearance  before  the  courts ;  but 
it  is  immoral  and  unethical  for  an  attorney  so  en- 
gaged to  conceal  his  attorne3^ship.  or  to  employ 
secret,  personal  solicitations,  or  to  use  means  other 
than  those  addressed  to  the  reason  and  understand- 
ing, to  influence  action. ' 

*'I  cannot  serve  you,  for  you  are  wrong  and  the  other  fellow  right." 
"That  is  none  of  your  business  if  I  hire  you,"  retorted  the  stranger. 
"None  of  my  business!"  exclaimed  Lincoln.  "My  business  is 
never  to  defend  wrong.  I  never  take  a  case  that  is  manifestly  wrong." 
"Well,  but  you  can  make  trouble  for  the  other  fellow,"  the  stranger 
insisted. 

"Yes,"   replied  Lincoln,  "I  can  set  a  whole  community  at  log- 
gerheads.   I  can  make  trouble  for  this  widow  and  her  fatherless  chil- 
dren, and  thereby  get  jou  ?ttO  which  as  rightfully  belongs  to  the  wo- 
man as  it  does  to  you.     But  I  won't  do  it." 

1  In  March,  1904,  the  United  States  District  Court,  sitting  at  St. 
Louis,  imposed  the  severest  penalty  ever  imposed  for  an  offense  of  this 
character.    The  convicted  man  was  United  States  Senator  Burton,  and 


LEGAL  ETHICS.  235 

§  183.  The  Advocate's  Relation  to  His  Profession — 
General  Considerations. — Nothing  should  be  higher  in 
the  estimation  of  the  advocate,  next  after  those 
sacred  relations  of  home  and  country,  than  his  pro- 
fession. She  should  be  to  him  the  "fairest  of  ten 
thousand"  among  the  institutions  of  the  earth.  He 
must  stand  for  her  in  all  places  and  resent  an}'-  at- 
tack on  her  honor  as  he  would  if  the  same  attack  were 
to  be  made  against  his  own  fair  name  and  reputation. 
He  should  enthrone  her  in  the  secret  places  of  his 
heart,  and  to  her  he  should  offer  the  incense  of  con- 
stant devotion.     For  she  is  a  jealous  mistress. 

That  this  is  not  mere  sentiment  is  evidenced  by  the 
successful  careers  of  the  world's  greatest  lawyers, 
who  were  invariably  the  most  enthusiastic  devotees 
of  their  profession's  honor  and  esprit  du  corp.  In- 
deed, the  advocate  who  starts  out  in  his  professional 
life  as  a  free  lance  with  the  idea  that  he  will  have 
nothing  to  do  with  his  professional  brethren  except 
as  necessity  or  business  compels  him;  who  takes  up 
his  profession  as  some  merchants  run  their  business, 
with  the  idea  that  all  his  brother  lawyers  are  his 
competitors,  and  therefore  his  enemies,  to  be  under- 
rated at  every  opportunity  and  to  be  antagonized  at  all 
times,  is  assured  of  an  abject  and  dismal  failure.  THe 
contempt  of  his  own  profession  will  drive  every  de- 
cent client  from  his  office.  No  client  desires  for  his 
advocate  one  whom  the  courts  and  his  own  profes- 
sion regard  disdainfully  and  to  whom,  therefore,  they 

hia  offense  was  a  violation  of  Sec.  1781,  Rev.  Stat.  U.  S.,  which  provides 
that  "every  member  of  congress  who,  directly  or  indirectly,  takes  or 
receives  any  money,  property,  or  other  valuable  consideration  from  any 
person  for  procuring,  or  aiding  to  procure,  any  contract  •  *  ♦  from 
the  government,  or  any  department  thereof,  shall  be  punished,  etc." 
This  statute  is  merely  a  declaration  of  the  unwritten  code  of  legal  ethics, 
which  the  people  hare  put  Into  statute  form  (or  the  purpose  of  more 
probable  and  certain  punishment. 


236  AMERICAN  ADVOCACY. 

do  not  care  to  show  any  courtesies  which  the  law  does 
not  strictly  compel  them  to  extend. 

Moreover,  it  is  to  the  interest  of  lawyers  to  stand 
together.  In  so  many  particulars  are  their  duties 
and  obligations  reciprocal.  Indeed,  one  advocate 
who  has  the  opportunity  to  extend  a  favor  to  another 
advocate  to-day  may  be  compelled  to  request  the 
other  advocate  to  reciprocate  to-morrow.  Besides, 
nothing  is  so  profitable  and  encouraging  as  the  mu- 
tual interchange  of  experiences  and  the  friendly 
exchange  of  brotherly  greetings  by  attorneys  who 
may  have  for  the  moment  been  on  opposite  sides  of  a 
bitter  controversy.  Let  the  attorney,  therefore,  in 
all  that  he  does,  never  forget  to  keep  the  honor  of 
his  profession  unsullied,  and  to  constantly  strive  to 
win  the  respect  and  confidence  of  his  professional 
brethren. 

§  184.  The  Advocate's  Relation  to  His  Profession — 
Attitude  Towards  Opposing  Counsel. — Toward  opposing 
counsel  the  advocate's  attitude  should  be  courteous 
but  unflinching,  generous  but  not  reckless  in  grant- 
ing favors.  He  will  avoid  all  personality  so  far  as 
possible,  never  breaking  into  his  opponent's  address 
to  the  court  or  jury  except  when  he  is  grossl}^  mis- 
stating facts  or  misrepresenting  him,  and  always 
dealing  fairly  with  his  opponent's  arguments.  He 
should  never  enter  upon  a  trial  supposing  his  adver- 
sary to  be  a  fool,  but  rather  overestimate  his  ability. 
This  should  serve  to  stimulate,  not  to  embarrass,  his 
faculties.  Whatever  may  be  the  riot  of  unrest  within 
his  bosom ,  he  must  bear  a  front  as  calm  and  inscru- 
table as  if  the  day  were  already  his. 

If  our  advocate  is  asked  by  his  adversary,  or  the  lat- 
ter's  attorney,  to  state  what  he  knows  of  a  particular 
transaction,  what  will  be  his  evidence,  who  are  his 
witnesses,  whether  a  certain  document  is  in  exist 


LEGAL  ETHICS.  237 

ence  or  what  are  its  contents,  or  whether  any  of  the 
jury  are  his  clients,  he  must  decline  to  answer  at  all 
or  reply  trul}\  The  request  may  be  unjustifiable, 
but  this  will  not  permit  a  false  statement,  upon 
which  the  other  will  probablj^  rely.  Nor  will  the 
barrister  be  too  ready  to  grant  every  favor  which  his 
brother  lawyer  may  suavely  ask  at  his  hands;  his 
complaisance  becomes  treachery  if  he  admits  away 
substantial  portions  of  his  client's  cause  upon  the  as- 
surance that  the  favor  is  merely  formal.  But  if  he 
promises  to  concede  a  formal  point,  to  furnish  his 
opponent  a  list  of  his  authorities  before  the  trial,  or 
to  agree  to  a  continuance  of  the  suit,  he  falls  to  the 
level  of  a  common  deceiver  if  he  fails  to  perform  his 
agreement  to  the  letter. 


CHAPTER  XV. 


COMPENSATION  AND  ADVERTISING. 


§185.    Compensation  —  General 
Considerations. 

186.  Compensation — Regulating 

the  Amount  of  the  Fee. 

187.  Compensation — Contingent 

Fees. 

188.  Compensation  —  When  an 

Advocate  May  Contract  for 
His  Services  on  a  Sal- 
ary Basis. 

189.  Advertising  —  General  Con- 

siderations. 

190.  Advertising — Legal  Direct- 

ories and  Newspaper  No- 
.toriety. 

191.  Advertising — Divorce  Ad- 

vertising. 


§192.    Advertising  —  Politics  as  an 
Advertising  Medium. 

193.  Advertising  —  Social  Ac- 

quaintance and  Club  Life. 

194.  Advertising — Pretending  to 

be   Learned  or  Whelmed 
with  Business. 

195.  Advertising  —  Employment 

of  Runners. 

196.  Advertising — "Buying  Up" 

Causes  of  Action. 

197.  Advertising  —  Stealing  An- 

other Attorney's  Practice. 

198.  Advertising — Office  Furni- 

ture and  Modern  Business 
Methods. 

199.  Advertising— The  Final  Test 

of  Advertising  Methods. 


§  185.  Compensation — General  Considerations. — Ad- 
vocates just  starting  into  practice  and  compelled  to 
grasp  at  every  straw  for  a  livelihood,  are  impatient 
at  any  suggestion  that  there  is  a  limitation  on  their 
right  to  contract  for  their  services.  This  impatience 
disappears  when  he  is  reminded  that  in  practice  they 
are  not  irksome  and  serve  not  only  to  dignify  the 
profession  but  to  win  the  confidence  of  the  people. 

In  the  first  place,  as  to  the  "honorarium."  The 
honorarium  is  the  name  given  to  fees  paid  to  advocates 
in  the  early  English  practice  and  which  still  obtains, 


COMPENSATION  AND  ADVERTISING.  239 

in  name  at  least,  in  England  to-day.  The  honorarium 
is  a  gratuitous  fee.  In  the  very  early  common  law 
when  the  only  advocates  were  clericals,  the  service 
rendered  by  the  local  priest  or  monk  was  considered 
a  pious  duty  on  his  part  and  was  rewarded  by  a  gift 
which  the  giver  paid,  not  as  compensation  to  the 
advocate  but  as  an  honorable  thing  to  do  on  his  part. 
This  practice  has  continued  down  to  the  present  day 
in  England,  but  never  obtained  a  foothold  in  this 
country,  probably  because  of  our  practice  in  uniting 
the  office  of  barrister  and  solicitor  in  the  same  indi- 
vidual. In  this  country,  therefore,  the  profession 
recognizes  the  principle  that  "the  laborer  is  worth v 
of  his  hire,"  and  that  if  it  is  desirable  to  have  a 
tr^inedjggal  profession^  the  devotees  must  be  com- 
pensated  for  the  vears  of  study  and  training  neces- 
sary to  perfect  themselves  for  its  practice.^ 

There  is  one  exception  to  the  modern  rule  that  an 
advocate  is  entitled  to  compensation  for  his  services, 
i.  e.,  when  he  is  assigned  by  the  court  to  conduct  the 
defense  of  an  indigent  prisoner.  The  advocate  has 
in  such  a  case  the  right  to  recover  neither  from  the 
prisoner,  who  did  not  contract  to  employ  him,  nor 
from  the  county,  who  expect  him  to  render  such 
services  as  an  officer  of  the  court  in  return  for  the 
privileges  which  the  state  gives  him  to  practice  his 
profession.^ 

'  ^^Tbe  tUm^Y  "fRtftTt  of  an  bonorarium  has  a  nominal  existence  only 
in  England.  In  this  country  it  is  unlinown.  Tlie  attorney,  in  every 
case,  may  demand  and  enforce  such  remuneration  as  shall  cotnpengate. 
him  for  the  time  and  labor  actually  expended,  and  in  fixing  the 
amount  of  such  remuneration  the  preliminary  preparation  for  tbe  as- 
tnmption  of  professional  duties  is  a  proper  factor.  Without  this  the 
profession  of  advocacy  could  not  be  maintained  in  this  country.'' 
Warvelle's  Essays  in  Legal  Ethics,  p.  75. 

»  Johnson  v.  Whiteside  County,  110  111.  22. 


240  AMERICAN   ADVOCACY. 

§  186.  Compensation — Regulating  the  Amount  of  the 
Fee. — A  lawyer's  fee  is  the  most  uncertaiix  thing  in 
the  world.  It  bears  some  resemblance  to  a  woman's 
fickleness  and,  like  it,  has  been  the  butt  of  much 
ridicule  and  sarcasm.  No  lawyer  ever  attempts  to 
apply  any  hard  and  fast  rules  in  such  matters.  It 
all  depends,  as  the  courts  would  say,  on  the  circum- 
stances of  the  particular  case.  It  might  also  be  said 
to  depend  on  the  ' ^ circumstances ' '  of  the  client: 
whether  he  is  in  good  or  poor  circumstances  has 
very  often  considerable  to  do  with  estimating  the 
value  of  the  attorney's  services. 

The  young  advocate  makes  a  serious  mistake  by 
starting  out  in  a  spirit  of  bravado,  and  charging  fees 
which,  while  reasonable  in  an  old  practitioner,  are 
ridiculous  in  the  case  of  one  without  experience. 
Business  is  generally  thrown  to  the  young  practi- 
tioner by  friends,  or  as  "feelers"  by  business  men, 
or  as  "too  insignificant"  by  busier  lawyers,  or  the 
prospective  client  is  very  poor.  In  every  one  of 
these  cases  there  is  absolutely  no  reason  or  justifica- 
tion for  a  lawyer  to  charge  what  he  maj^  term  "an 
honorable  and  respectable  fee."  Indeed,  most  of 
this  business  will  hardly  pay  even  a  retainer,  and 
the  young  lawyer  will  probably  be  asked  to  take  it 
on  a  contingent  fee.  If  he  is  wise  he  will  encourage 
proiessionai  compensation  on  such  a  basis,  as  agree- 
ments for  contingent  compensation  are  to-dav  per- 
fectly  legitimate  and  ethical  and  will  net  him  larger 
returns  than  if  he  exacts  a  certain  cash  retainer  in 
advance.  Clients,  also,  will  feel  more  willing  to  en- 
gage his  servic«s  on  this  basis,  and  thus  he  increases 
his  business  as  well  as  his  opportunities  for  getting 
before  the  public  and  for  proving  his  ability  as  a  trial 
lawyac- 

The  only  safe  and  wise  rule,  therefore,  is  to  begin 


COMPENSATION  AND  ADVERTISING.  241 

by  low  fees  to  encourage  business  and  gauge  the 
charges  of  various  clients,  not  on  a  basis  of  the  exact 
time  or  service  rendered,  but  in  proportion  to  the 
abilit}'  of  the  client  to  pay  and  the  benefit  derived 
from  his  services.  Of  course,  he  should  not  cheapen 
his  practice  too  much.  Unless  on  a  contingent  fee, 
he  probabh^  should  not  charge  less  than  five  dollars  j^Jt^^j^c* 
for  any  legal  service.  This,  of  course,  does  not  in- 
clude fees  for  notarial  services.  If  a  client  is  stub- 
born, and  inclined  to  contest  and  quarrel  over  what 
is  really  only  a  reasonable  fee,  the  young  lawj^er  will 
probably  do  well  to  firmly  dismiss  the  inquirer  from 
his  presence  without  argument,  as  he  will  probably 
be  an  unprofitable  client.  Indeed,  it  might  raise 
him  a  little  in  the  eyes  of  the  inquirer  to  say:  "'Oh 
yes.  certainly,  you  can  hire  such  lawyers,  but  I  am 
too  busy  at  present  to  take  verv  low-priced  prac- 
tice^l'  Still,  with  this  one  exception,  the  young  law- 
yer must  remember  the  proposition  with  which  we 
oi)ened  this  paragraph — he  must  be  fair  and  tactful 
with  his  clients  in  the  matter  of  compensation,  never 
driving  them  away  by  overcharging.  Later  on,  when 
his  reputation  is  made  and  his  ability  proven,  the 
m  atter  of  fees  will  trouble  neither  him  nor  his  clients, 
as  among  the  better  class  of  clients  there  is  rarely 
ever  any  argument  over  the  amount  of  a  fee. 

Very  often  associations  of  commercial  lawyers, 
and  sometimes  even  local  bar  associations,  attempt 
to  regulate  the  charges  for  various  services  to  be 
rendered.  An  advocate  who  directly  or  indirectly 
agrees  to  such  regulations  is  bound  by  them,  and 
would  very  seriously  offend  the  ethics  of  the  profes- 
sion were  he  to  disregard  such  regulations.' 

'  •'Sometimes  bar  associations  prescribe  rules  with  respect  to  the  com- 
pensation to  be  charged  by  their  members  for  certain  kinds  of  service 
16 


242  AMERICAN   ADVOCACY. 

§  187.  Compensation — Contingent  Fees. — At  a  time 
when  the  honor  of  the  profession  of  law  was  more 
prominent  than  its  business  aspect,  the  practice  of 
taking  contingent  fees  was  frowned  upon  and  placed 
the  offender  in  a  lower  and  more  dishonorable  strata 
of  practitioners.  Gradually,  however,  the  justice 
and  necessity  of  such  contracts  in  certain  instances 
have  been  generally  recognized,  although  courts  and 
laymen  seem  to  still  view  them  with  suspicion.  ^ 

The  contingent  fee  is  purely  a  wild  growth;  it 
knows  neither  rules  nor  limitations.  There  is 
neither  definiteness  nor  certainty  about  it.  "If  you 
lose,  I  get  nothing;  if  you  win,  you  get  nothing  ,"  was 
the  well-known  definition  of  a  certain  lawyer  who  was 
asked  by  a  client  to  explain  to  him  the  meaning  of  the 
word.  While  there  is  some  exaggeration  about  this 
definition,  it  sufficiently  expresses  the  idea  that  the 
attorney's  compensation  in  this  class  of  cases  is  not 

and  the  conditions  under  which  such  service  Bhall  be  rendered.  *  *  * 
As  between  the  members  of  the  association  the  rnles  would  be  binding, 
as  they  would  also  be  with  respect  to  others  who  assent  to  them,  but, 
in  the  absence  of  such  assent,  the  right  to  recover  for  services  must  be 
determined  and  the  amount  of  such  recovery  ascertained  by  the  gen- 
eral law  and  not  by  the  rules  of  the  bar.''  Warvelle's  Essays  in  Legal 
Ethics,  p.  87,  citing  Boylan  v.  Holt.  45  Miss.  277. 

1  "It  is  contended  that  if  a  person  could  not  secure  counsel  by  a 
promise  of  large  fees  in  case  of  success,  to  be  derived  from  the  subject- 
matter  of  the  suit,  it  would  often  place  the  poor  in  such  a  condition  as 
to  amount  to  a  practical  denial  of  justice.  It  not  infrequently  happens 
that  persons  are  injured  through  the  negligence  or  wilful  misconduct 
of  others,  but  who  yet,  by  reason  of  poverty,  are  unable  to  employ 
counsel  to  assert  their  rights.  In  such  event  their  only  means  of  re- 
dress lies  in  gratuitous  service,  which  is  rarely  given,  or  in  their  abil- 
ity  to  find  some  one  who  will  conduct  the  case  for  a  pontingent  fee.  . 
That  relations  of  this  kind  are  often  abused  by  speculative  attorneys,  or 
that  suits  of  this  character  are  turned  into  a  sort  of  commercial  traffic 
by  the  ''personal  injury"  lawyer,  does  not  destroy  the  beneficent  idea 
last  discussed.  So  it  will  be  seen  that  much  can  be  said  in  favor  of  con- 
tingent fees,  viewed  solely  from  an  ethical  standpoint."  Warvelle's 
Essays  in  Legal  Ethics,  p.  92. 


COMPENSATION  AND  ADVERTISING.  243 

based  on  any  consideration  of  the  real  value  of  the 
services  of  the  attorney  to  his  client,  but  is  rather  a 
joint  speculation  where  one  puts  in  his  claim  and  the 
other  his  services  with  an  agreement  to  share  in  the 
result  at  a  certain  ratio. 

We  have  no  intention  at  this  time  to  enter  into  the 
question  of  the  validity  of  agreements  for  contingent 
compensation  nor  to  discuss  the  circumstances  under 
which  they  may  be  said  to  become  champertous.  It 
is  sufficient  to  say  that  the  rule  sustained  b}^  the 
great  weight  of  American  authority  is  to  the  effect 
that  a  contract  between  the  attorney  and  his  client 
for  a  contingent  fee  is  not  necessarily  invalid.  All 
the  law  will  do  in  such  case  is  to  scrutinize  the  trans- 
action, and  see  that  it  is  fair,  and  that  no  unfair 
advantage  has  been  taken  either  of  the  necessities  or 
the  ignorance  of  the  client.^ 

But  when  will  the  law  say  that  a  contingent  fee 
stipulated  for  i«  unconscionable?  The  general  rule  is 
that  a  contract  by  an  attorney  for  the  prosecution  of 
a  claim  for  a  contingent  fee  is  not  void,  unless  it  ap- 
pears that  the  agreement  was  clearly  extortionate,  or 
that  the  attorney  has  taken  an  undue  advantage  of  his 
client.' 

In  the  recent  case  of  Herman  v.  Metropolitan 
Street  Railway  Company,  however,  the  court  at- 
tempts to  make  the  rule  more  definite  by  setting  a 
limit  to  the  percentage  which  may  be  agreed  upon. 
In  the  case  referred  to,  which  was  decided  by  the 
United  States  Circuit  Court  (Second  Circuit)  but  not 
yet  reported.  Judge  Lacombe  holds  that  an  agree- 

'  Chester  County  v.  B»rber,  97  Pa.  St.  455;  Taylor  v.  Bemis,  110  U 
8.  42,  3  Sup.  Ct.  Rep.  44;  Perry  v.  Dlcken,  105  Pa.  St.  83,  51  Am.  Reu 
181. 

2  Taylor  v.  Bemig,  110  U.  S.  42,  3  Snp.  Ct.  Rep.  441. 


244  AMERICAN   ADVOCACY. 

merit  to  accept  a  contino-ent  fee  of  fifty  per  cent  is 
unconscionable  in  an  ordinary  accident  case. 

The  authorities  on  this  question  are  not  very  nu- 
merous. In  the  case  of  Rust  v.  Larne,  ^  an  attorney 
agreed  to  conduct  a  suit  for  the  recovery  of  money 
and  certain  slaves,  and  in  case  of  success  to  receive 
one-third  of  the  amount  recovered,  or  the  value  of 
the  slaves.  The  court  held  that,  the  recovery  having 
been  at  the  time  doubtful  and  only  obtained  after 
protracted  litigation,  the  amount  so  agreed  on  was  not 
so  large  as  to  be  unconscionable.  Another  case  hold- 
ing one- third  not  to  be  an  unconscionable  percentage 
is  III  re  Hynes,^  where  a  guardian  of  certain  infants 
employed  counsel  to  recover  real  property  of  the  lat- 
ter of  the  value  of  $141,660,  for  a  contingent  fee  of 
one-third.  It  appearing  that  the  questions  involved 
in  the  litigation  were  of  great  importance  and  diffi- 
culty, the  court  held  the  agreement  a  reasonable  one. 
In  only  one  case  that  has  come  to  our  attention,  other 
than  the  recent  one  to  which  we  have  directed  attention, 
has  a  contingent  fee  of  fiftj^  per  cent  been  declared 
unconscionable."''  The  weight  of  authority,  however, 
is  to  the  effect  that  no  hard  and  fast  rule  can  be 
drawn  in  such  cases,  and  that  in  many  cases  a  contin- 
gent fee  of  fifty  per  cent  would  be  perfectly  reason- 
able.^ 

'   14  Ky.  (4  Litt.)  411,  14  Am.  Dec.  172. 

2  105  X.  Y.  560,  12  X.  E.  Rep.  60. 

3  This  was  the  case  of  In  re  Sloan  (Pa.  1892),  14  Pa.  Co.  Ct.  359.  In 
this  case  the  court  held  that  an  agreement  to  pay  an  attorney  a  contin- 
gent fee  of  fifty  percent  of  a  claim  for  collection  will  not  be  enforced 
where  it  appeared  that  the  claim  was  not  difficult  of  proof  and  might 
have  been  enforced  after  judgment,  but  that  the  attorney  contented 
himself  with  obtaining  judgment,  which  was  collected  twenty  years 
later  by  counsel  associated  with  him  at  the  creditor's  request. 

<  Cain  V.  Warford,  33  Md.  23 ;  Reece  v.  Kyle,  49  Ohio  St.  475,  31 X.  E. 
Rep.  747,  16L.R.  A.  721. 


COMPENSATION  AND  ADVERTISING.  245 

§  188.  Compensation  —  When  an  Advocate  May  Con- 
tract for  his  Services  on  a  Salary  Basis. — While  at  the 
present  time  there  is  no  ethical  objection  to  an  advo- 
cate giving  up  his  entire  services  for  a  stated  salary, 
nevertheless  it  is  a  sharp  departure  from  ancient 
ideals.     The  advocate  originallj-  could  accept  nothing 


)ut  an  "honorarium,"  and  he  must  serve  all  parties 
alike,  and  in  criminal  cases  was  subject  to  assign- 
ment by  the  court  to  defend  any  indigent  person 
charged  with  crime  who  might  need  the  services  of  an 
advocate.  Under  such  considerations  it  is  difficult  to 
conceive  how  an  advocate  could  sell  his  entire  time 
and  services  for  a  salary.  And  even  at  the  present 
time  many  objections  to  such  a  compact  are  apparent. 
In  the  first  place,  there  is  the  fundamental  idea 
that  advocacy  is  not  an  independent  calling;  indeed, 
the  advocate,  as  an  officer  of  the  court,  is  subject 
to  the  latter's  supervision  and  direction  in  many  par- 
ticulars, and  where  he  sells  his  entire  time  and  serv- 
ice to  a  third  person  he  in  some  measure  restricts 
his  ability  to  comply  with  his  obligations  as  such 
officer  of  the  court.  In  addition  to  that,  a  lawyer 
lowers  the  standard  of  professional  dignity  and 
brings  it  to  the  level  of  a  mere  clerkship. 

We  are  not  now  speaking,  of  course,  of  those 
contracts  in  the  shape  of  a  retainer  by  corpora- 
tions by  which  they  may  at  an}^  time  command  the 
services  of  the  attorney  during  the  life  of  the  con- 
tract. By  such  a  contract  an  attorne,y  does  not  sell 
himself,  nor  all  his  time,  to  the  corporation,  but 
merely  gives  it  a  preference  over  other  clients.  In 
other  words,  they  have  the  first  call  on  their  serv- 
ices, and  the  yearly  retainer  may  or  may  not  be  in 
full  compensation  for  his  services. 

Another  feature  of  this  question,  however,  is  the 
contract  by  an  attorney  for  his  time  and  services  at 


246  AMERICAN   ADVOCACY. 

a  stated  salary  to  a  corporation  or  syndicate  who  de- 
sire to  use  his  services  at  a  profit  to  themselves.  A 
contract  of  this  character  is  clearly  ug,^gthical  and  il- 
legal. No  unlicensed  person  can  practice  law,  and 
any  contract  by  which  such  person  or  corporation  is 
enabled  to  make  profit  out  of  law  suits  by  hiring  an 
advocate  at  a  stated  salary  to  carry  on  matters  of 
litigation,  is  not  only  contrary  to  the  ethics  of  the 
profession,  but  is  clearly  illegal  and  void.^ 

§  189.  Advertising — General  Considerations. — Hardly 
a  single  important  meeting  of  a  bar  association  can 
take  place  anywhere  without  some  reference  being 
made  in  the  proceedings  to  the  ethics  of  advertising 
and  as  to  the  extent  to  which  a  lawyer  may  go  in 
soliciting  business.  The  sentiment  seems  strong  in 
the  younger  generation  of  commercial  lawyers  to 
pull  away  from  the  old  ideals  of  the  profession  and 
to  look  upon  the  law  more  in  the  nature  of  a  business. 
Some  of  the  most  radical  of  this  class  of  lawyers 
have  gone  to  the  extent  of  calling  the  law  a  busi- 
ness, and  claiming  the  right  to  resort  to  any  and  all 
methods  made  use  of  in  ordinary  trade  and  com- 
merce. Such  statements  have  had  the  unfortunate 
effect  of  leading  some  of  the  weaker  members  of  the 
profession  into  practices  which,  though  they  might 
be  tolerated  in  business,  cannot  be  tolerated  in  an 
officer  of  the  court.     And  herein  lies  the  secret  of 


'  Jarvis  v.  Great  Western  K.  W.  Co.,  8  C-  P.,  cited  in  16  Canada 
.Law  Journal,  276.  In  this  case  the  corporation  hired  an  attorney  on  a 
salary  basis,  but  in  various  ways  were  able  to  use  his  services  in  the 
courts  at  a  profit  to  themselves.  The  court  said:  "If  what  was  sug- 
gested when  the  summons  was  originally  moved,  namely,  that  the  de- 
fendants sought  unlawfully  to  realize  a  profit  out  of  the  professional 
services  of  their  attorney  were  true,  I  suppose  the  taxation  of  costs 
would  be  prevented;  for  it  would,  in  principle,  amount  to  allowing 
suits  to  be  carried  on  in  the  name  of  an  attorney  for  the  profit  of  an 
uncertified  person." 


COMPENSATION  AND  ADVERTISING.  247 

the  distinction  between  law  and  business.  The  law 
is  not  a  business  nor  an  independent  profession,  as 
that  of  medicine  or  dentistry;  it  is  an  adjunct  to  courts 
of  justice.  The  lawyer  is  an  officer  and,  as  an  officer, 
he  owes  his  superior,  the  court,  every  consideration 
of  respect.  He  can  therefore  indulge  in  no  practice 
that  would  bring  the  court  or  the  law  into  disrepute. 
If  he  does,  he  not  only  incurs  the  enmity  of  his  own 
profession  but  also  the  severe  displeasure  of  the 
court,  who  in  exceptional  cases  will  dismiss  him  as  its 
officer  and  disbar  him  from  the  practice  of  his  profes- 
sion. 

In  the  year  1903,  Hon.  Mitchell  D.  Pollansbee, 
in  an  address  before  the  Northwestern  University 
School  of  Law,  gave  utterance  to  what  we.  consider 
the  soundest  bit  of  advice  as  to  the  extent  to  which  a 
lawyer  may  advertise  we  have  ever  had  drawn  to  our 
attention.  After  a  few  generalities  as  to  the  ethics  of 
advertising,  Mr.  Follansbee  warns  the  lawyer  to  re- 
member, always,  that  he  is  a  member  of  the  pi'ofes- 
sion,  and  that  because  he  is  a  member  of  the  profes- 
sion, cei'tain  things,  which  would  be  honorable  enough 
for  a  tradesman  to  do  in  the  way  of  advertising,  must 
not  be  done  by  him.  In  the  following  pages  we  have 
used  much  of  Mr.  Follansbee's  address,  and  desire 
thus  publicly  to  give  him  credit  for  it.  The  author, 
however,  has  endeavored  to  follow  out  the  ideas  of  Mr 
Follansbee  more  minutelv  and  endeavored  to  enter 
a  little  more  in  particular  in  regard  to  a  subject  which 
is  of  such  great  interest  to  lawyers,  especially  to 
those  about  to  start  in  practice. 

§  190.  Advertising — Legal  Directories  and  Newspaper 
Notoriety.  —  The  legaJ^^icfictory  is  the  commonest 
form  of  legal  advprtiainpr.  The  desire  of  members 
of  the  bar  to  increase  their  'business  has  become 
so  well  known,   that  all  over  the  country  men   in 


248  AMERICAN  ADVOCACY. 

their  vigils  are  planning  new  scheme^  and  making 
new  excuses  for  taking  from  the  lawyer  the  price 
of  a  line  or  a  card  for  an  advertisement.  There 
are  over  400  of  these  Jl.ggaI__djxefitQrifis  published, 
and  while  few  are  of  any  value  to  the  practitioner, 
they  often  succeed  in  making  the  publisher  happy. 
This  advertising  in  the  legal  directories  is  all  a 
matter  of  the  last  forty  or  fifty  years,  and  now  one 
may  safely  say  that  there  are  few  firms  in  the  country 
whose  names  do  not  appear  in  one  list  or  another. 
In  the  "English  Law  List,"  which  is  the  official  organ 
of  the  bar  of  that  country,  are  to  be  seen  the  cards 
of  Alexander  &  Green,  Evarts,  Choate  &  Beaman, 
Parsons,  Shepard  &  Ogden,  of  New  York,  and  sev- 
eral other  well-known  firms  of  the  present  day.  In 
the  "Scottish  Law  List"  names  of  the  same  class 
appear.  The  same  is  true  of  the  "Irish  Law 
List."  The  Canadian  firms  advertise  extensively. 
In  Kine's  Internatinal  Law  Directory,  a  London  pub- 
lication, are  found  cards  of  lawyers  from  Cape  Town, 
Kimberley  and  Pietersmartisburg  to  Moscow.  B, 
D.  Milonopulu  of  Corfus,  in  Greece,  advertises  that 
he  corresponds  in  English;  Simeon  Petases,  Avocat, 
of  Jerusalem,  that  his  letters  will  be  in  Arabic;  while 
Philip  Morton,  barrister  at  law  of  the  Middle  Temple, 
banished  at  Lahore,  in  the  Punjamb  District  of  India, 
calls  attention  to  the  fact  of  his  proficiency  in  Persian 
and  Urdu.  The  practice  of  the  insertion  of  a  card  is 
so  common,  so  world-wide,  that  it  no  longer  attracts 
an}^  adverse  criticism.  This  sort  of  advertising  has 
one  advantage.  It  keeps  a  man's  name  before  his 
friends  in  the  profession,  and  when  they  have  an 
item  of  business  to  send  to  his  town,  and  take  up  the 
legal  director}^,  or  the  banker's  encyclopedia,  or 
whatever  list  they  use,  they  are  apt  to  be  reminded 


COMPENSATION  AND  ADVERTISING.  249 

of  some  one  thej'-  have  known  by  seeing  his  name , 
and  so  send  him  business. 

As  a  practical  matter,  it  is  doubtful  whether  news- 
paper notoriet}''  is  potent  in  building  up  a  good 
clientage.  If  it  were,  there  are  a  lot  of  men  who  would 
have  reached  affluence  long  ago;  for  many  men  in  their 
time  have  seen  their  names  in  the  head  lines  and 
their  opinion  referred  to  in  editorial  utterances,  but 
their  popularity  and  prestige  seem  to  have  been  as 
ephemeral  as  the  issue  of  the  paper  which  exploited 
them,  and  their  reputations  have  been  made  and 
lost  before  a  single  new  client  heard  anything  about 
them.  That  sort  of  publicity  only  impresses  the  man 
who  does  not  know  how  those  things  are  done,  and 
that  kind  of  a  man  seldom  has  any  law  business 
worth  doing,  and  the  man  who  really  has  law  busi- 
ness that  is  worth  doing,  as  a  rule,  does  not  care  to 
pay  to  keep  his  attorney  in  the  calcium  light  of  pub- 
licity. He  recognizes  that  living  in  the  public  ej^e  is 
not  necessarily  the  most  potent  in  real  work. 

§  191.  Advertising  —  Divorce  Advertising. — Divorce 
advertising  seems  to  be  the  most  prevalent  occasion  for 
stumbling  on  thepartof  lawyers  in  soliciting  business . 
Some  states  prohibit  the  solicitation  of  such  business 
altogether,  under  penalty  of  fine.  Wheresuch  statutes 
do  not  prevail  it  is  probable  that  a  simple  card  in  a 
newspaper  soliciting  divorce  business  would  not  be 
any  more* reprehensible  in  the  eye  of  the  court  than  a 
solicitation  of  any  other  ^branch  of  legal  practice,  al- 
though in  some  respects  it  is  more  damagingjto  pub- 
lic morals,  and  is  certainly  a  breach  of  professional 
ethics.  ^  But  in  such  advertisements  misleading  state  - 

'  Mr.  Follansbee  relates  an  interesting  incident.  He  says:  "WhiU 
In  Cleveland,  alongside  of  a  picture  of  a  woman  witii  her  right  arm 
raised  toward  heaven,  almost  touching  the  word  'free*  in  large  letters, 
we  find  the  following  modest  announcement:  'Divorces.     Do  not  apply 


250  AMERICAN   ADVOCACY. 

ments  are  made  and  false  inducements  hung  out  that 
bring  both  the  courts  and  the  law  into  bad  repute, 
and  affect  injuriously  the  public  welfare.  Thus 
where  an  attorney  publishes  advertisements  without 
any  signature,  representing  that  he  can  procure  di- 
vorces for  causes  not  known  to  the  law,  and  without 
any  publicity  and  without  reference  to  the  residence 
of  the  parties,  and,  by  such  advertisements,  solicits 
business  of  that  character  by  communication  through 
a  particular  postoffice  box,  by  its  number,  such  con- 
duct is  a  libel  on  the  courts  and  a  disgrace  to  the  at- 
torney, and  is  calculated  to  bring  reproach  upon  the 
profession,  and  the  name  of  the  offending  party  should 
be  stricken  from  the  roll.  ^ 

So,  also,  an  advertisement  reading:  "Divorces  le- 
gally obtained  very  quietly ;  good  everywhere.  Box 
2344,  Denver," — is  against  good  morals,  is  a  false  rep- 
resentation, and  a  libel  on  courts  of  justice,  and  re- 
peated publications  in  a  newspaper  of  such  adver- 
tisement by  an  attorney  constitutes  malconduct  in  his 
office,  for  which  the  supreme  court  is  empowered  by 
statute  to  strike  his  name  from  the  roll  of  attorneys.  ^ 

In  the  leading  case  of  People  v.  McCabe,  cited  in 
the  note,  the  court  takes  a  very  pronounced  position: 
"The  ethics  of  the  profession,"  says  the  court,  "for- 

for  a  divorce  until  you  have  called  on  us,  as  we  can  save  you  the  time, 
trouble  and  money.  Consult  us  when  in  any  trouble  and  it  will  cost 
you  nothing,  and  our  experience  may  be  of  inestimable  value  to  you. 
The  very  best  experienced  legal  talent.  Divorce  and  accident  or  injury 
cases  a  specialty.'  Of  course,  nowhere  are  advertisements  such  as  I 
have  quoted  regarded  as  dignified  or  professional,  and  they  are  utterly 
useless.  It  is  foolish  to  lose  professional  standing  if  there  is  no  pre- 
mium in  it.  It  is  too  much  like  being  a  journeyman  pirate  with  no 
share  in  the  swag." 

1  People  V.  Goodrich,  79  111.  148. 

2  People  V.  McCabe,  IS  Colo.  186,  32  Pac.  Rep.  28,  36  Am.  St.  Rep. 
270. 


COMPENSATION  AND  ADVERTISING.  251 

bid  that  an  attorney  should  advertise  his  talents  or 
his  skill  as  a  shopkeeper  advertises  his  wares.  An 
attorney  may  properly  accept  a  retainer  for  the 
prosecution  or  defense  of  an  action  for  divorce  when 
convinced  that  his  client  has  a  good  cause.  But  for 
any  one  to  invite  or  encourage  such  litigation  is  most 
reprehensible.  The  marriage  relation  is  too  sacred ; 
it  affects  too  deeplj'the  happiness  of  the  family;  it  con- 
cerns too  intimately  the  welfare  of  society;  it  lies  too 
near  the  foundation  of  all  good  government  to  be 
broken  up  or  disturbed  for  slight  or  transient  causes. 
*  *  *  When  a  lawyer  advertises  that  divorces  can 
be  legally  obtained  very  quietly,  and  that  such  divorce 
will  be  good  everywhere,  such  advertisement  is  a 
strong  inducement — a  powerful  temptation— to  many 
persons  to  apply  for  divorces  who  would  otherwise 
be  deterred  from  taking  such  a  step  from  a  wholesome 
fear  of  public  opinion.  *  *  *  Such  an  advertise- 
ment is  against  good  morals  public  and  private;  it  is 
a  false  representation  and  a  libel  upon  courts  of  jus- 
tice. Divorces  cannot  be  legally  obtained  very  quietl}^ 
which  shall  be  good  everywhere.  To  sa}'  that  di- 
vorces can  be  obtained  very  quietly  is  equivalent  to 
saying  that  they  can  be  obtained  without  publicity — 
a  libel  on  the  integrity  of  the  judiciar3\" 

§  192.  Advertising — P/alitics  as  an  Advertising  Me- 
dium.— There  are  two  wa3^s  of  going  into  politics:  one 
as  the  active  worker  in  a  limited  section  of  territory, 
such  as  a  precinct,  and  there  one  may  grow  ac- 
quainted with  a  certain  number  of  plain  people,  and  if 
he  is  patient  and  a  good  fellow,  and  they  like  him, 
sooner  or  later  those  plain  people,  or  their  friends, 
will  need,  and  must  have,  the  advice  and  service  of 
an  attorney^  The  other  method  is  to  start  in  as  an 
orator  or  spellbinder.  The  latter  method  sometimes 
leads  the^ybung  lawyer  to  retainers  in   sensational 


252  AMERICAN   ADVOCACY. 

suits,  but  there  are  so  many  spellbinders  in  the  citj'  or 
count}',  and  so  few  sensational  suits,  that  oratorj^  is 
hardly  an  employment  one  can  count  oh.  When  it 
comes  to  officeholding  the  lawyer  is  usually  disap- 
pointed, and  if  he  does  hold  office,  though  his  name  is 
before  the  people,  he  does  not  advance  especiall}'  in 
his  profession.  The  oflBces  are  few  and  the  aspirants 
many,  and  rewards,  at  best,  are  scant  compared  with 
the  industry  which  is  needed.  The  failure  of  the 
3'oung  lawyer  who  goes  into  politics  to  obtain  the 
proper  sort  of  advertising,  is  because  of  the  fact  that 
he  finds  himself  advei'tised,  not  as  a  lawj^er,  but  as  a 
politician,  or  that  he  becomes  known  as  one  who  suc- 
ceeds so  little  in  law  that  he  has  time  to  devote  to 
the  duties  of  every  right-minded  citizen. 

§  193.  Advertising  —  Social  Acquaintance  and  Club 
Life. — Some  men  hope  to  become  advertised  through 
social  connections;  but  only  in  the  stories  written  by 
high -school  girls  is  the  j^oung  lawyer  retained  as  he 
emerges  from  a  conservatory  or  enters  the  box  at  the 
opera.  The  average  business  man  would  rather  lend 
his  legal  friend  one  hundred  dollars,  without  any 
clear  hope  of  getting  it  back,  than  trust  him  with  a 
ten-dollar  lawsuit.  He  will  do  the  first  thing  as  a 
matter  of  friendship,  but  when  he  does  the  second  it 
is  a  matter  of  business,  and  the  business  man's  whole 
ti'aining  has  taught  him  that  the  men  who  do  the  best 
work  are  not  the  men  who  have  much  time  for  l^leas- 
u res,  of  the  Hoh.  Of  course,  there  are  exceptions. 
Sometimes,  when  a  law3^er  once  gets  a  start  and  has 
an  acquaintance,  it  is  worth  while  to  take  a  long  trip 
in  compan}^  with  a  wealthy  client,  with  a  wealth^Mnan 
who  may  become  a  client;  but  this  is  a  long  shot,  and 
always  expgnsiyfi. 

About  one  lawyer  a  day  plans  to  increase  his  ac- 
quaintance by  joining  a  club  or  lodge,  and  therefore 


\,J4^^  ^^  ^COMPENSATION  AND  ADVEKTISING.  253 


whether  he  join  for  golf  or  billiards,  or  for  fraternal 
insurance,  he  is  sure  to  find  the  territory  ovgr-r 
crowded  and  overworked,  while  the  whole  social 
fabric  IS  honeycombed  with  members  of  the  pi*o- 
fession;  and  there,  again,  the  men  whose  business 
is  worth  while,  resent  the  insurance  agent,  and  the 
dentist  brings  up  unpleasant  memories,  but  of  a 
lawyer,  most  of  all,  thej^  are  cautious.  If  they  get  to 
know  him  well  as  a  man,  they  respect  him  too  highly 
to  confess  their  financial  embarrassments  or  marital 
infelicities,  or  moral  delinquencies;  and  yet,  they 
will  bring  those  same  troubles  to  a  lawyer  whom  they 
do  not  know,  without  reserve. 

§  194.  Advertising — Pretending  to  be  Learned  or 
Wlielmed  with  Business. — It  was  the  old  idea  that  a 
man  ought  to  look  like  a  lawyer.  Fifty  years  ago 
young  men  copied  the  forehead  of  Mr.  Webster. 
Later,  especially  in  this  western  country,  men  failed 
to  comb  their  hair  because  Matt  Carpenter,  of  Wis- 
consin, did  not.  Boy  orators  come  to  the  cities  every 
year  and  think  that  eccentricities  will  be  mistaken 
for  originality  of  mind,  and  that  a  foghorn  voice  will 
be  accepted  as  an  indication  of  great  force  of  thought. 
It  is  to  be  noticed  that  as  they  learn,  the  practice  of 
the  upper  courts  they  get  over  the  eccentricities  of 
dress  and  put  a  soft  pedal  on  their  utterances.  Like 
them  is  the  man  who  always  carries  the  green  bag 
on  the  streets,  whether  he  has  anything  in  it  or  not, 
because  he  has  heard  that  Boston  lawyers  do  that, 
and  the  man  who  always  carries  a  law  book  on  street 
cars  or  s  uburban  trains,  because  he  thinks  it  will 
give  him  a  reputation  as  a  student.  There  are  other 
men  who  succeed  quite  well  because  througli  some 
aphasia  they  never  talk  on  an^'-  but  legal  subjects, 
and  that„  irrespective  of  what  any  particular  occa- 
sion may  demand.     They  succeed  pretty  fairly  well, 


254  AMERICAN   ADVOCACY. 

as  a  rule,  because  they  impress  every  one  with  the 
fact  that  they  are  lawyers  and  up  even  with  the  times, 
and  that  mere  fact  helps  them.  Take  a  young-  man 
with  no  striking  ability  and  let  him  constantly  attend 
all  manner  of  bar  association  and  legal  club  meetings. 
Sooner  or  later  there  will  get  to  be  a  suspicion  among 
those  who  see  him  in  such  places  that  he~must  be  a 
lawyer,  and  if  they  see  him  there  long  enough,  they 
getan  idea  that  he  must  be  a  pretty  good  lawyer,  in 
the  same  way  that  we  figure  that  any  old  settler  must 
have  something  distinctive  about  him. 

§  195.  Advertising — Employment  of    Runners. — Un- 
der statutes  in  force  in  some  states,  it  will  be  an   oc- 
casion for  disbarring  an  attorney  if  he   "lends  his 
name  to  be  used  as  attornej^  and  counselor  by  another 
person  who  is  not  an  attorney  and  counselor."     Such 
a  statute,  for  instance,  is  in  force  in   California.     It 
has   been  held   in  that  state  that  a  contract  b}'  an 
attorney  to  pay  a  layman  a  third  of  his  fee,  if  the  lay- 
man procures  the  employment  of  the  attorney  b}'  a 
litigant,  is  contrary  to  the  public  policy  of  that  state, 
as  expressed  by  the  statute  we  have  quoted,  as  the 
effect  of  such  acontract  is  to  permit,  bj^  in  direction,  the 
use  of  an  attorney's  name  by  another  not  an  attorney.  ^ 
Since  the  practice  denounced  in  this  case  is  so  often 
practiced,  especially  by  attorneys  making  a  special t}' 
of  negligence  cases,  it  would  not  be  a  useless  waste  of 
space  to  call  attention  to  some  strong  and  unusual 
statements  in  the  court's  opinion  in  this  case.  Speak- 
ing of  the  attorneys'  contract  with  one  Bolte,   a  lay- 
man, by  which  the  latter  was  to  receive  one-third  of 
the  fee  of  the  former  in  any  case  procured  through 
his   efforts,  the  court  said:     "Was   not  Bolte  really 


1   Alpers  V.  Hunt,  86  Cal.  78,  24  Pac .  Rep .  846,  21  Am  .  St    Rep .  17, 
19L.R.A.483. 


COMPENSATION  AND  ADVERTISING.  255 

allowed  to  use  their  names  in  the  prosecution  of  a 
matter  in  litigation?  Under  the  emploj^ment  of  them 
as  attornej'^s,  made  through  Bolte's  procurement, 
they  engaged  to  use  their  faculties  as  attorneys  and 
counselors  at  law  for  his  benefit,  and  that,  too,  in  a 
cause  in  which  he  had  no  interest  as  a  party.  By  the 
terms  of  the  agreement  he  was  to  derive  a  benefit 
from  the  rendition  of  their  services  in  their  profes- 
sional capacity,  and  to  receive  a  share  of  their  fee, 
as  if  he  had  been  concerned  with  them  as  a  regularly 
admitted  attorney.  He  was  thus  enabled  through 
their  agency,  vicariously,  and  not  openly  in 
his  own  name,  to  aid  in  the  prosecution  of  a  matter 
in  litigation,  and  to  receive  through  it  such  a  reward 
as  is  usually  gained  by  an  attorney  regularly  admit- 
ted to  exercise  his  profession.  *  *  *  if  such  a 
practice  were  allowed,  an  attorney  might  have  a 
number  of  undisclosed  associates  through  his  agenc}' 
exercising  the  functions  of  an  attorney  and  counselor, 
and  reaping  the  rewards  flowing  therefrom,  without 
resting  under  any  of  the  responsibilities  incident  to 
such  position,  and  possessing  none  of  the  qualifica- 
tions which  the  law  demands  and  requires. ''' 

'  A  certain  class  of  lawyers  who  look  upon  their  profession  more  as 
a  business  than  a  profession  can  see  nothing  wronjf  in  a  contract  with  a 
layman  by  which  the  latter  engages  to  furnish  him  with  causes  of  ac- 
tion and  evidence  to  support  them  in  consideration  of  a  certain  percent- 
age of  the  atttorney's  fee.  A  recent  case  hoi  Is  that  such  a  contract 
is  absolutely  void  and  unenforceable.  Langdon  v.  Conlin.  93  N.  W.  Rep. 
388.  In  this  case  the  Supreme  Court  of  Nebraska  held  that  a  contract 
between  an  attorney  at  law  and  one  who  is  not  such  an  attorney,  by 
which  the  latter  agrees  to  procure  the  employment  of  the  former  by 
third  persons  for  the  prosecution  of  suits  in  courts  of  record,  and  also  to 
assist  in  looking  after  and  procuring  witnesses  whose  testimony  Is  to  be 
used  In  the  cases,  in  consideration  of  a  share  of  the  fees  which  the 
attorney  shall  receive  for  his  services,  is  against  public  policy  and  void. 
In  rendering  its  decision  the  court  voiced  the  following  sentiments :  "It 
IS  apparent  that  It  Is  the  policy  of  the  legislature  to  tix  a  high  standard 
of  professional  ethics  to  govern  the  conduct  of  attorneys  In  their  rela- 


256  AMERICAN   ADVOCACY. 

§  196.  Advertising  —"Buying  Up"  Causes  of  Action. — 

In  New  York  a  lawyer  can  .be  disbarred  for  "buying 
up"  legal  business.  Thus,  a  statute  in  that  state 
"provides  that  "no  attorney  shall  buy  any  bond,  bill, 
promissory  note,  book  debt,  or  other  thing  in  action, 
with  the  intent  and  for  the  purpose  of  bringing  suit 
thereon."  The  courts  have  held  that  a  violation 
of  this  statute  is  a  ground  for  disbarment.^  In 
other  states,  having  no  such  statute,  the  "buy- 
ing up"  of  business  of  this  nature  will  not  be  ground 
for  disbarring  the  attorne}''  and  is  onl}^  questionable 
as  to  the  extent  such  action  might  violate  the  rule  of 
law  in  that  particular  state  against  champert}^  and 
maintenance.  Thus,  in  Michigan  it  is  a  violation  of 
no  law  for  an  attorney  to  purchase  a  chattel  from  one 
par  ty  and  bring  replevin  against  another  to  recover 
possession  of  it.^ 

In  a  very  recent  case,  however,  it  has  been  held 
that  champerty  renders  an  attorney  amenable  to 
summar}'  proceedings  for  disbarment,  notwithstand- 

tions  with  clients  and  courts,  and  to  protect  litigants  and  courts  of  jus- 
tice from  tlie  imposition  of  shysters,  charlatans,  and  mountebanks.  It 
seems  to  us  that  the  contract  in  issue  is  but  a  thinly  veiled  subterfuge 
by  which  the  plaintiff,  \yho,  it  is  conceded,  was  not  a  member  of  the  bar, 
anJ  who  had  never  complied  with  any  of  the  provisions  of  chapter 
seven,  for  the  purpose  of  authorizing  him  to  engage  in  the  practice  of 
law,  undertook  to  break  into  the  conduct  of  proceedings  in  a  court  of 
rtSUQ^d,  to  which  he  was  not  a  party,  by  attempting  to  form  a  limited 
and  silent  partnership  with  one  who  had  complied  with  the  provisions 
of  the  law  and  was  entitled  to  the  emoluments  of  the  profession."  The 
decision  in  this  case  is  supported  by  the  authorities:  Alpers  v.  Hunt, 
86  Cal.  78,  24  Pac.  Kep.  846.  9  L.  R.  A.  483,  21  Am.  St.  Rep.  17:  Burt 
V.  Place,  6  Cow.  (N.  Y.)  431;  Munday  v.  Whisenhunt,  90  X.  C.  458; 
Lyon  V.  Hussey,  82  Hun,  15. 

»    People  V.  Waldbridge,  6  Cow.,  (N.  Y.)  517. 

2   Town  V.  Tabor,  34  Mich.  262. 


COMPENSATION  AND  ADVERTISING.  257 

ing  it  may  be  effectual  as  a  defense  to  the  euforce- 
ment  of  a  contract.  ^ 

§  197.  Advertising — Stealing  Another  Attorney's 
Practice. — It  is  also  a  good  ground  for  the  disbarment 
of  an  attorney  that  he  endeavor  to  win  business  by 
stealing  the  patronage  of  a  brother  attorne}^.  Noth- 
ing, perhaps,  could  be  more  reprehensible,  at  least 
to  the  eyes  of  the  profession,  than  such  conduct.  One 
attorney  has  no  right  to  intermeddle  with  the  clients 
of  another  attorney  and  endeavor  to  secure  his  own  em- 
ployment at  the  expense  of  the  other.  He  may  be  dis- 
bar red  for  such  practice.  In  the  case  of  Baker  v.  State, ^ 
it  was  considered  a  proper  cause  for  striking  an  at- 
torney from  the  rolls  that  he  intermeddled  between 
a  brother  attorney  and  his  client,  grossly  slandered 
the  former  and  endeavored  to  induce  the  client  to 
forsake  the  advice  of  her  own  counsel  and  follow 
his  instead,  offering  to  furnish  advice  without  charge. 

§  198.  Advertising — Office  Furniture  and  Modern 
Business  Methods. — There  are  law3'^ers  who  do  not  go 
out  of  their  offices  to  advertise,  and  who  smile  at 
those  who  do.  It  is  a  trade  maxim  in  a  department 
store  that  the  most  important  thing  in  selling  goods 
is  to  get  customers  into  the  store,  and  it  is  figured 
that  every  customer  who  comes  into  the  store  will 
spend  just  about  so  much  money,  and  likewise,  these 
men  argue  that  when  a  man  comes  into  your  office, 
it  is  only  a  question  of  time  when  he  pays  some  of 
his  money  for  your  advice  or  efforts,  and  they  claipa 
that  the  money  that  is  spent  for  this  office  advertis- 
ing meets  the  best  returns.  In  the  papers  and  plead- 
ings and  letters  that  they  send  out  they  affect  scru- 
pulous care,  and  their  recipient  concludes  that  the 

1  In  re  Eyans,  22  Utah,  366^  92  Pac.  Rep.  913. 

2  Baker  y.  State,  90  Oa.  153. 

17 


258  AMERICAN   ADVOCACY. 

writer  is  careful  and  painstaking,  and  methodical. 
The  office  and  the  work  table  are  orderly,  and  this 
fact  argues  an  orderly  mind.  The  office  stationery 
is  rich  but  not  gaudy,  which  is  a  sign  of  prosperity 
long  continued,  and  generally  one  feels  that  the  ap- 
pearance of  industry  accompanies  the  fact. 

§  199.  Advertising  —  The  Final  Test  of  Advertising 
Methods. — The  whole  test  of  whether  advertising  is 
effective  is  whether  the  work  of  the  advertiser  is 
clumsy  or  artistic,  is  coarse  or  smooth.  The  man  who 
does  coarse  work  may  win  for  a  week  or  a  year,  but  he 
wiir never  know  the  heights  of  prof essional  success; 
while  the  smooth  man,  who  regards  these  questions 
delicately  and  works  quietly  and  without  friction, 
who  dispenses  with  the  steam  calliope  as  an  unneces- 
sary adjunct,  finds  that  each  year  his  profession  is 
more  of  a  joy  and  his  acts  in  the  profession  better 
appreciated. 

There  is^  something  of  a  contrast  between  the  peo- 
ple who  are  going  to  make  things  happen  and  who 
bring  to  the  profession  the  tricks  of  the  market  place, 
and  those  who  prefer  to  do  business  in  a  dignified 
way,  a  waj''  that  the  great  leaders  of  the  bar  have 
known,  and  which  the  so-called  business  lawyer  can 
never  understand  and  can  never  appreciate.  And 
this  significant  fact  remains,  and  the  only  fact  of 
which  we  may  be  perfectly  sure,  that  the  man  who 
does  coarse  work,  and  who  is  guilty  of  noisy  ad- 
vertising, whether  in  the  country  newspapers  or  in 
the  cafe  of  the  Waldorf-Astoria,  will  not  win  enduring 
success. 

From  time  to  time  some  trial  reported  in  the  news- 
paper attracts  the  attention  of  everyone,  and  the 
young  practitioner  is  asked  by  the  barber  who  serves 
him  whether  a  certain  man  is  not  the  best  lawyer  in 
town.     The  barbers  and  men  in  their  station  of  life 


COMPENSATION  AND  ADVERTISING.  259 

make  up  their  minds  easily  and  usually  on  insufficient 
information.  They  reflect  the  average  opinion  of  that 
part  of  the  public  to  which  litigation  and  ownership 
are  unknown  delights,  a  public  never  profitable.  The 
clients  who  really  help  are  the  men  who  are  strong 
and  steady.  These  men  will  not  be  deceived  by  ad- 
vertising. They  will  be  attracted  to  polite  gentle- 
men of  graceful  address,  engaging  personality  and 
habits  of  hard  work,  and  little  by  little  they  will  show 
their  appreciation  in  practical  ways.  If  the  man 
whom  they  know  is  workmanlike,  they  will  hear  of 
that  fact  sooner  or  later ;  if  he  wins  a  difficult  case, 
the  news  will  get  to  them,  even  if  the  young  man  is 
guilty  of  spreading  it;  if  he  draws  contracts  and 
wills  cleverly  and  smoothly  and  accurately,  knowl- 
edge of  that  fact  will  also  get  about,  until  in 
time  the  lawyer  will  find  that  his  clients  are  so  many 
enthusiasts.  They  are  so  sure  of  his  ability  and  his 
superiority  that  they  are  forever  sounding  his  praises; 
so  proud  of  his  services,  and  the  results  those  ser- 
vices have  obtained,  that  each  makes  an  especial 
effort  to  send  new  clients  to  the  office,  until  the  law- 
yer is  beyond  the  need  of  any  advertising  with  which 
he  is  concerned. ' 


•  "Such  a  lawyer,"  says  Mr.  Follansbee,  "finds  himself  sitting 
quietly  and  modestly  while  his  name  is  mentioned  at  bank  boards  and 
around  the  firesides  as  one  who,  by  inheritance  and  training,  is  honest, 
thoughtful  and  quiet,  and  by  industry  has  become  strong;  and  th< 
monument  of  such  a  man  will  not  be  a  few  envelopes  of  press  clippings, 
or  packages  of  ballots  never  voted,  or  programs  of  Chautauqua  assem- 
blies, but  it  will  be  found  in  the  reported  decisions  of  cases  in  which  he 
was  victorious;  in  accurately  drawing  conveyances  which  have  stood 
the  test  of  years;  and  in  the  esteem  in  which  he  is  held  by  families  of 
quiet,  God-fearing  people,  who  have  learned  from  him  to  place  the 
help  and  friendship  of  the  lawyer  only  slightly  below  that  of  the 
priest. " 


APPENDIX. 


CODE  OF  ETHICS  ADOPTED  BY  THE  ALABAMA 
STATE  BAR  ASSOCIATION.* 

The  purity  and  efficiency  of  judicial  administration  which,  under 
our  system,  is  largely  government  itself,  depend  as  much  upon  the 
character,  conduct  and  demeanor  of  attorneys  in  this  great  trust  as 
upon  the  fidelity  and  learning  of  courts  or  the  honesty  and  intelligence 
of  juries.  A  comprehensive  summary  of  the  duties  specifically  en- 
joined by  law  upon  attorneys,  which  they  are  sworn  not  to  violate,  is 
found  in  Section  791  of  the  Code  of  Alabama.    These  duties  are : 

First.  To  support  the  constitution  and  laws  of  this  state  and  the 
United  States. 

Second.  To  maintain  the  respect  due  to  courts  of  justice  and  judi- 
cial officers. 

Third.  To  employ  for  the  purpose  of  maintaining  the  causes  con- 
fided to  them  such  means  only  as  are  consistent  with  truth,  and  never 
seek  to  mislead  the  judges  by  any  artifice  or  false  statement  of  the  law. 

Fourth.  To  maintain  inviolate  the  confidence  and,  at  every  peril  to 
themselves,  to  preserve  the  secrets  of  their  clients. 

Fifth.  To  abstain  from  all  offensive  personalities  and  to  advance  no 
fact  prejudicial  to  the  honor  or  reputation  of  a  party  or  a  witness, 
unless  required  by  the  justice  of  the  cause  with  which  they  are 
charged. 

Sixth.  To  encourage  neither  the  commencement  nor  continuance  of 
an  action  or  proceeding  from  any  motive  of  passion  or  interest. 

Seven.  Never  to  reject  for  any  consideration  personal  to  themselves 
the  cause  of  the  defenseless  and  oppressed. 

*  Printed  in  accordance  with  the  Act  of  the  General  Assembly,  approvtd  Feb- 
ruary 2, 1899,  In  118  Ala.  xxiii.  We  have  taken  the  liberty  to  arrange  and  subdivtde 
the  code  as  thus  prepared  and  to  provide  the  rarions  gnbdlviaions  with  appro- 
priate subheads. 


262  APPENDIX. 

No  rule  will  determine  an  attorney's  duty  in  the  varying  phases  of 
every  cause.  What  is  right  and  proper  must,  in  the  absence  of  statu- 
tory rule  and  an  authoritative  code,  be  ascertained  in  view  of  the  pe- 
culiar facts,  in  the  light  of  conscience,  and  the  conduct  of  honorable 
and  distinguished  attorneys  in  similar  cases,  and  by  analogy  to  the 
duties  enjoined  by  statute  and  the  rules  of  good  neighborhood. 

The  following  rules  are  adopted  by  the  Alabama  State  Bar  Associa- 
tion for  the  guidance  of  its  members : 

Duties  of  Attorneys  to  Courts  and  Judicial  Officers. 

1.  Respect  for  Judicial  Officers. — The  respect  enjoined  by  law  for 
courts  and  judicial  officers  is  exacted  for  the  sake  of  the  office,  and  not 
for  the  individual  who  administers  it.  Bad  opinion  of  the  incumbent, 
however  well  founded,  cannot  excuse  the  withholding  of  the  respect 
due  the  office  while  administering  its  functions. 

2.  Criticism  of  Jadioial  Coudnct.— The  proprieties  of  the  judicial 
station  in  a  great  measure  disable  the  judge  from  defending  himself 
against  the  strictures  upon  his  official  conduct.  For  this  reason,  and 
because  such  criticisms  tend  to  impair  public  confidence  in  the  admin- 
idtration  of  justice,  attorneys  who,  as  a  rule,  refrain  from  published 
criticism  of  judicial  conduct,  especially  in  reference  to  causes  in  which 
they  have  been  of  counsel  otherwise  than  in  courts  of  review,  or  when 
the  conduct  of  a  judge  is  necessarily  involved  in  determining  his  re- 
moval or  continuance  in  office. 

3.  Using  Personal  Inflaence  on  tlie  Court.— Marked  attention  and 
unusual  hospitality  to  a  judge,  when  the  relations  of  the  parties  are 
such  that  they  would  not  otherwise  be  extended,  subject  both  judge 
and  attorneys  to  misconstruction,  and  should  be  sedulously  avoided. 
All  attempts  to  gain  special  personal  consideration  and  favor  of  a  judge 
are  disreputable. 

4.  Defending  the  Court  Against  Popular  Clamor.— Courts  and  ju- 
dicial officers,  in  the  rightful  exercise  of  their  functions,  should 
always  receive  the  support  and  countenance  of  attorneys  agains":  unjust 
criticism  and  popular  clamor;  and  it  is  the  duty  of  an  attorney  to  give 
them  his  moral  support  in  all  proper  ways,  and  particularly  by  setting 

good  example  in  his  own  person  of  obedience  to  law. 

5.  Candor  and  Fairness. — The  utmost  candor  and  fairness  should 
characterize  the  dealings  of  attorneys  with  the  courts  and  with  each 
other.  Knowingly  citing  as  authority  an  overruled  case,  or  treating  a 
repealed  statute  as  in  existence ;  knowingly  misquoting  the  language  of 
a  decision  or  text  book ;  knowingly  misquoting  the  contents  of  a  paper, 
the  testimony  of  a  witness  or  the  language  or  argument  of  opposite 
counsel;  offering  evidence  which  it  is  known  the  court  must  reject  as 
illegal  to  get  it  before  the  jury  under  guise  of  arguing  its  admissibility, 
and  all  kindred  practices,  are  deceits  and  evasions  unworthy  of  attor- 
neys. 


APPENDIX.  263 

6.  Display  of  Tempen — One  side  must  ahvaj's  lose  the  case,  and  it 
Is  not  wise  or  respectful  to  the  court  for  attorneys  to  display  temper 
because  of  an  adverse  ruling. 

7.  Treatment  of  Witnesses  and  Parties  to  the  Cause. — Witnesses 
and  suitors  should  be  treated  with  fairness  and  kindness.  When  essen- 
tial to  the  ends  of  justice  to  arraign  their  conduct  or  testimony,  it 
should  be  done  without  villification  or  unnecessary  harshness.  Fierce- 
ness of  manner  and  uncivil  behavior  can  add  nothing  to  the  truthful 
dissection  of  a  false  \yitness"  testimony  and  even  rob  deserved  strict- 
ures of  proper  weight. 

8.  Attitude  Toward  tlie  Jury. — It  is  the  duty  of  the  court  and  its  of- 
ficers to  provide  for  the  comfort  of  jurors.  Displaying  special  concern 
for  their  comfort  and  volunteering  to  ask  favors  for  them  while  they 
are  present  should  be  avoided  by  attorneys.  Such  intervention  of  attor- 
neys, when  proper,  ought  to  be  had  privately  with  the  court,  whereby 
there  will  be  no  appearance  of  fawning  upon  the  jury  nor  ground  for 
ill  feeling  of  the  jury  towards  the  court  or  opposite  counsel  if  such 
requisitions  ai-e  denied.  For  like  reasons,  one  attorney  should  never 
ask  another  in  the  presence  of  the  jury  to  consent  to  its  discharge  or 
dispersion ;  and  when  such  a  request  is  made  by  tlie  court,  the  attor- 
neys, without  indicating  their  preference,  should  ask  to  be  heard  if  the 
jury  withdraws. 

9.  Conversing  Privately  witli  Jurors.— An  attorney  ought  never  to 
converse  privately  with  jurors  about  the  case,  and  must  avoid  all  un- 
necessary communication  even  as  to  matters  foreign  to  the  cause,  both 
before  and  during  the  trial.  Any  other  course,  no  matter  how  blame- 
less the  attorney's  motives,  gives  color  to  the  imputing  of  evil  designs, 
and  often  leads  to  scandal  in  the  administration  of  justice. 

Duties  of  Attorneys  to  Clients. 

10.  How  Far  an  Attorney  May  Go  in  Supporting  His  Client's  Cause. 

— Nothing  has  been  more  potential  in  creating  a  pandering  to  popular 
prejudice  against  lawyers  as  a  class,  and  in  withholding  from  the  pro- 
fession the  full  measure  of  public  esteem  and  confidence  which  Ijelong 
to  the  proper  discharge  of  Its  duties,  than  tlie  false  claim  often  set  up 
by  the  unscrupulous  in  defense  of  questionable  transactions,  that  it  is 
an  attorney's  duty  to  do  everything  to  succeed  in  his  client's  cause. 

n.  Attitude  of  State's  Attorney  Toward  Innocent  Prisoner.— An 
attorney  appearing  or  continuing  as  private  counsel  in  the  prosecution 
of  a  crime  of  which  he  believes  the  accused  innocent,  forswears  him- 
self. The  state's  attorney  is  criminal  if  he  presses  for  a  conviction 
when,  upon  the  evidence,  he  believes  the  prisoner  innocent.  If  the  evi- 
dence is  not  plain  enough  to  justify  a  nolle  pros.,  a  public  prosecutor 
should  submit  the  case  with  such  comments  as  are  pertinent,  accom- 
panied by  a  candid  statement  of  his  own  doubts. 


264  APPENDIX. 

12.  Defendiug  Oue  Whom  Advocate  Believes  to  Be  Guilty.— An 

attorney  cannot  reject  the  defense  of  a  person  accused  of  a  criminal 
offense  because  he  knows  or  believes  tiiin  guilty.  It  is  his  duty  by  all 
fair  and  honorable  means  to  present  such  defenses  as  the  law  of  the 
land  permits,  to  the  end  that  no  one  may  be  deprived  of  life  or  liberty 
but  by  due  process  of  law. 

13.  3IiUiitiiiMing  Harassing  Litigation.— An  attorney  must  decline 
in  a  civil  case  to  conduct  a  prosecution  when  satisfied  that  the  purpose 
is  merely  to  harass  or  injure  the  opposite  party,  Or  to  work  oppression 
and  wrong. 

14.  Where  Attorney  Becomes  a  Witness  for  His  Client. — When  an 
attorney  is  a  witness  for  his  client,  except  as  to  formal  matters,  such 
as  the  attestation  or  custody  of  an  instrument  or  the  like,  he  should 
leave  the  trial  of  the  cause  to  other  counsel.  Except  when  essential  to 
the  ends  of  justice,  an  attorney  should  scrupulously  avoid  testifying  in 
court  in  behalf  of  his  client  as  to  any  matter. 

15.  Impersonality  of  the  Advocate. — The  same  reasons  which  make 
it  improper  in  general  for  an  attorney  to  testify  for  his  client  apply 
with  greater  force  to  assertions  sometimes  made  by  counsel  in  argu- 
ment of  personal  belief  of  a  client's  innocence  or  the  justice  of  his 
cause. 

16.  Confidential  Commnnications. — Communications  in  confidence 
between  client  and  attorney  are  the  proper  secrets  of  the  client,  and 
cannot  be  divulged  except  at  his  instance;  even  the  death  of  the  client 
does  not  absolve  the  attorney  from  his  obligation  of  secrecy. 

17.  Accepting  Adverse  Retainers. — The  duty  not  to  divulge  the 
secrets  of  clients  extends  further  than  mere  silence  by  the  attorney  and 
forbids  the  acceptance  of  retainers  or  employment  afterwards  from 
others,  involving  the  client's  interests  in  the  matters  about  which  the 
confidence  was  reposed. 

18.  Attacking  His  Own  Instrnments  or  Conveyances, — An  attorney 
can  never  attack  an  instrument  or  paper  drawn  by  him  for  any  infirmity 
apparent  on  its  face ;  nor  for  any  other  cause  where  confidence  has  been 
reposed  as  to  the  facts  concerning  it.  Where  the  attorney  acted  as  a 
mere  conveyancer,  and  was  not  consulted  as  to  facts,  and  unknown  to 
him  the  transaction  amounted  to  a  violation  of  the  criminal  laws,  he 
may  assail  it  on  that  ground  in  suits  between  third  persons  or  between 
parties  to  the  instrument  and  strangers. 

19.  Representing  Conflicting  Interests.  —  An  attorney  can  never 
represent  conflicting  interests  in  the  same  suit  or  transaction  except  by 
express  consent  of  all  so  concerned  with  full  knowledge  of  the  facts. 
Even  then  such  position  is  embarrassing  and  ought  to  be  avoided .  An 
attorney  represents  conflicting  interests  within  the  meaning  of  this 
rule  when  it  is  his  duty  in  behalf  of  one  of  his  clients  to  contend  for 
that  which  duty  to  other  clients  in  the  transaction  requires  him  to 
oppose. 

20.  Ministering  to  the  Prejudices  of  his  Client.  —  An  attorney  is 


APPENDIX.  265 

under  no  obligation  to  minister  to  the  malevolence  or  prejudices  of  the 
client  in  the  trial  or  conduct  of  a  cause.  The  client  cannot  be  made  the 
keeper  of  the  attorney's  conscience  in  professional  matters.  He  cannot 
demand  as  of  right  that  his  attorney  shall  abuse  the  opposite  party  or 
indulge  in  offensive  personalities.  The  attorney,  under  the  solemnity 
of  his  oath,  must  determine  for  himself  whether  such  course  is  essential 
to  the  cause  of  justice  and,  therefore,  jastiflable. 

21.  Rierht  of  Attorney  to  Control  the  Incidental  Matters  of  the 
Trial. — As  to  the  incidental  matters  pending  the  trial,  not  affecting  the 
merits  of  the  case  or  working  substantial  prejudice  to  the  rights  of  the 
client,  such  as  forcing  the  opposite  attorney  to  trial  when  he  is  under 
affliction  or  bereavement;  forcing  the  trial  on  a  particular  daj-  to  the 
serious  injury  of  the  opposite  party,  when  no  harm  will  result  from  a 
trial  at  a  different  time;  the  time  allowed  for  signing  the  bill  of  excep- 
tions, crossing  interrogatories  and  the  like,  the  attorney  must  be 
allowed  to  judge.  No  client  has  a  right  to  demand  that  his  attorney 
shall  be  illiberal  in  such  matters  or  that  he  should  do  anything  therein 
repugnant  to  his  own  sense  of  honor  and  propriety;  and  if  such  course 
is  insisted  on  the  attorney  should  retire  from  the  cause. 

22.  Making  Bold  Assurances  to  Clients. — The  miscarriages  to  which 
justice  is  subject  and  the  uncertainty  of  predicting  results  admonish 
attorneys  to  beware  of  bold  and  confident  assurances  to  clients,  especi- 
ally where  the  employment  depends  upon  the  assurance,  and  the 
case  is  not  plain. 

23.  Promptness  and  Punctuality.  —  Prompt  preparation  for  trial, 
punctuality  in  answering  letters  and  keeping  engagements,  are  due  from 
an  attorney  to  his  client  and  do  much  to  strengthen  their  confidence 
and  friendship. 

24.  Disclosing  Adverse  Influences.— An  attorney  is  in  honor  bound 
to  disclose  to  the  client  at  the  time  of  retainer  all  the  circumstances  of 
his  relation  to  the  parties  or  interest  or  connection  with  the  controversy 
which  might  justly  influence  the  client  in  the  selection  of  his  attorney. 
He  must  decline  to  appear  in  any  case  where  his  obligation  or  relations 
to  the  opposite  party  will  hinder  or  seriously  embarrass  the  full  and 
fearless  discharge  of  all  his  duties. 

25.  Expressing  a  Candid  Opinion  as  to  the  Merits  of  a  Client's 
Cause. — An  attorney  should  endeavor  to  obtain  full  knowledge  of  his 
client's  cause  before  advising  him  and  is  bound  to  give  him  a  candid 
opinion  of  the  merits  and  probable  result  of  his  cause.  When  the  con- 
troversy will  admit  of  it,  he  ought  to  seek  to  adjust  it  without  litigation 
if  practicable. 

26.  Dealing  With  Trust  Property.— Money  or  rather  trust  property 
coming  into  the  possession  of  the  attorney  should  be  promptly  reported, 
and  never  commingled  with  his  private  property  or  used  by  him  except 
with  the  client's  knowledge  and  consent. 

27.  Business  dealings  With  the  Client.— Attorneys  should,  as  far  as 
poaslble,  avoid  becoming  either  borrowers  or  creditors  of  their  client ; 


266  APPENDIX. 

and  they  should  scrupulously  refrain  from  bargaining  about  the  subject 
matter  of  the  litigation  so  long  as  the  relation  of  attorney  and  client 
continues. 

28.  Keeping  Agreements  with  the  Client.  —  Important  agreements 
affecting  the  rights  of  clients  should,  as  far  as  possible,  be  reduced  to 
writing;  but  it  is  dishonorable  to  avoid  performance  of  an  agreement 
fairly  made  because  not  reduced  to  writing  as  required  by  rules  of  court. 

29.  How  to  Decide  Disagreements  of  Associate  Counsel. — Where 
attorneys  jointly  associated  in  a  cause  cannot  agree  as  to  any  matter 
vital  to  the  interests  of  their  client,  the  course  to  be  pursued  should 
be  left  to  his  decision.  A  client's  decision  should  be  ch;erfully  ac- 
quiesced in  unless  the  nature  of  the  difference  makes  it  impracticable 
for  the  attorney  to  co-operate  heartily  and  effectively,  in  which  event 
it  is  his  duty  to  ask  to  be  discharged. 

Duties  of  Attorneys   to  the  State. 

30.  Stirring  up  Litigation. — It  is  indecent  to  hunt  up  defects  in 
titles  and  the  like  and  inform  thereof  in  order  to  be  employed  to  bring 
suit:  or  to  seek  out  a  person  supposed  to  have  a  cause  of  action  and 
endeavor  to  get  a  fee  to  litigate  about  it.  Except  where  ties  of  blood, 
relationship  or  trust  make  it  an  attorney's  duty,  it  is  unprofessional  to 
volunteer  advice  to  bring  a  law  suit.  Stirring  up  strife  and  litigation 
is  forbidden  by  law  and  disreputable  in  morals. 

31.  What  Influences  an  Attorney  May  Use. — An  attorney  openly, 
and  in  his  true  character,  may  render  purely  professional  services  be- 
fore committees  regarding  proposed  legislation  and  in  advocacy  of 
claims  before  departments  of  the  government  upon  the  same  princi- 
ples of  ethics  which  justify  his  appearance  before  the  courts;  but  it  is 
immoral  and  illegal  for  an  attorney  so  engaged  to  conceal  his  attorney- 
ship or  to  employ  secret  personal  solicitations  or  to  use  means  other  than 
those  addressed  to  the  reason  and  understanding  to  influence  action. 


Duties  of  an  Attorney  to  His   Profession. 

32.  Upholding  the  Dignity  of  the  Profession. — An  attorney  should 
strive  at  all  times  to  uphold  the  honor,  maintain  the  dignity  and  pro- 
mote the  usefulness  of  the  profession ;  for  it  is  so  interwoven  with  the 
administration  of  justice  that  whatever  redounds  to  the  good  of  one 
advances  the  other;  and  the  attorney  thus  discharges  not  merely  an  ob- 
ligation to  his  professional  brethren  but  a  high  duty  to  the  state  and 
his  fellow  man. 

33.  Disparaging  Members  of  the  Profession. — An  attorney  should 
not  speak  slightingly  or  disparagingly  of  his  profession,  or  pander  in 
any  way  to  unjust  popular  prejudices  against  it;  and  he  should  scrupu- 
lously refrain  at  all  times  and  in  all  relations  of  life  from  availing  him- 


APPENDIX.  267 

self  of   any  prejudice  or  popular  misconception  against  lawyers  in 
order  to  carry  a  point  against  a  brother  attorney. 

34.  Exposing  Corrupt  Attorneys. — Attorneys  should  fearlessly  ex- 
pose before  the  proper  tribunals  corrupt  or  dishonest  conduct  in  the 
profession;  and  there  should  never  be  any  hesitancy  in  accepting  em- 
ployment against  an  attorney  who  has  wronged  his  client. 

35.  Newspaper  Discussion  9i  Pending  Litigation. — Newspaper  pub- 
lications by  an  attorney  as  to  the  merits  of  pending  or  anticipated  liti- 
gation call  forth  discussion  and  reply  from  the  opposite  party,  tend  to 
prevent  a  fair  trial  in  the  courts,  and  otherwise  prejudice  the  due  ad- 
ministration of  justice.  It  requires  a  strong  case  to  justify  such  pub- 
lications, and  when  proper  at  all,  it  is  unprofessional  to  make  them 
anonymously. 

36.  Ul-Feeling  and  Personalities  Between  Advocates. — Clients  and 
not  their  attorneys  are  the  litigants;  and  whatever  may  be  the  ill-feel- 
ing existing  between  clients,  it  is  unprofessional  for  attorneys  to  partake 
of  it  in  their  conduct  and  demeanor  to  each  other,  or  to  suitors  in  the 
case.  In  the  conduct  of  litigation  and  the  trial  of  causes,  the  attor- 
neys should  try  the  merits  of  the  cause  and  not  try  each  other.  It  is 
not  proper  to  allude  to  or  comment  upon  the  personal  history  or  men- 
tal or  physical  peculiarities  or  idiosyncracics  of  opposite  counsel. 
Personalities  should  always  be  avoided  and  the  utmost  courtesy  always 
extended  to  an  honorable  opponent. 

37.  Taking  Advantage  of  Opposite  Counsel  Without  Notice  to 
Him, — An  attorney  should  not  ignore  known  customs  or  practices  of 
the  bar  of  a  particular  court,  even  when  the  law  permits,  without  giv- 
ing opposing  counsel  timely  notice.  Xor  should  an  attorney  attempt 
to  compromise  with  the  opposite  party  without  notifying  the  latter's 
attorney  if  practicable.  Nor  should  an  attorney  engage  in  discussion 
or  arguments  about  the  merits  of  the  case  with  the  opposite  party, 
without  notice  to  the  latter's  attorney. 

38.  Wliere  Association  With  Other  Attorneys  is  Objectionable.— 
An  attorney  coming  into  a  cause  in  which  others  are  employed  should 
give  notice  as  soon  as  practicable  and  ask  for  a  conference,  and  if  the 
association  is  objectionable  to  the  attorney  already  in  the  cause  the 
other  attorney  should  decline  to  take  part  unless  the  tirst  attorney  is 
relieved. 

Compensation. 

39.  Explicit  Understanding  as  to  Compensation.— Satisfactory  rela- 
tions between  attorney  and  client  are  best  preserved  by  a  frank  and  ex- 
plicit understanding  at  the  outset  as  to  the  amount  of  the  attorney's 
compensation;  and  where  it  is  possible  this  should  always  be  agreed  on 
in  advance. 

40.  Suing  a  Client  for  a  Fee.— In  general  it  is  better  to  yield  8omo- 
thing  to  a  client'»  dissatisfaction  at  the  amount  of  the  fee,  though  the 


268  APPENDIX. 

sum  be  reasonable,  than  to  engage  in  a  law  suit  to  justify  it,  which 
ought  always  to  be  avoided  except  as  a  last  resort  to  prev-'nt  imposition 
or  fraud. 

41.  Fixing  the  Amount  of  the  Fee. — Men  as  a  rule  overestimate 
rather  than  undervalue  the  worth  of  their  services,  and  attorneys  in 
fixing  their  fees  should  avoid  charges  which  unduly  magnify  the  value 
of  their  services  as  well  as  those  which  practically  belittle  them.  A 
client's  ability  to  pay  can  never  justify  a  charge  for  more  than  the  ser- 
vice is  worth;  though  his  poverty  may  require  a  less  charge  in  many 
instances,  sometimes  none  at  all.  An  attorney  may  charge  a  regular 
client,  who  intrusts  him  with  all  his  business,  less  for  a  particular  ser- 
vice than  he  would  charge  a  casual  client  for  like  services.  The  ele- 
ment of  uncertainty  of  compensation  where  a  contingent  fee  is  agreed 
on  justifies  a  higher  charge  than  where  compensation  is  assured. 

42.  Elements  to  be  Considered  in  Fixing  the  Fee.— In  fixing  the 
fees  the  following  elements  should  be  considered.  1st.  The  time  and 
labor  required, the  novelty  and  difficulty  of  the  questions  involved, 
and  the  skill  requisite  to  properly  conduct  the  cause.  2nd.  Whether 
the  particular  case  w^ill  debar  the  attorney's  appearance  for  others  in 
cases  likely  to  arise  out  of  the  transaction  and  in  which  there  is  a  rea- 
sonable expectation  that  the  attorney  would  otherwise  be  employed; 
and  herein  of  the  loss  of  other  business  while  employed  in  the  par- 
ticular case,  and  the  antagonism  with  other  clients  growing  out  of  the 
employment.  3rd.  Customary  charges  of  the  bar  for  similar  services. 
4th.  The  real  amount  involved  and  the  benefit  resultina:  from  the  ser- 
vices. 5th.  Whether  the  compensation  was  contingent  or  assured. 
6th.  Is  the  client  a  regular  one  retaining  the  attorney  in  all  his  busi- 
ness. 

No  one  of  these  considerations  is  in  itself  controlling.  They  are 
mere  guides  in  ascertaining  what  the  services  are  really  worth  and  in 
fixing  the  amount  it  should  never  be  forgotten  that  the  profession  is  a 
branch  of  the  administration  of  justice  and  not  a  mere  money-getting 
trade. 

43.  Contingent  Fees. — Contingent  fees  may  be  contracted  for;  but 
they  lead  to  many  abuses  and  certain  compensation  is  to  be  preferred. 

44.  Compensation  for  Services  Rendered  to  Another  Attorney.— 
Casual  and  slight  services  should  be  rendered  without  charge  by  one 
attorney  to  another  in  his  peaponal  cause;  but  when  the  service  goes 
beyond  this  the  attorney  may  be  charged  as  other  clients.  Ordinary 
advice  and  services  to  the  family  of  a  deceased  attorney  should  be 
rendered  without  charge  in  most  instances;  and  where  the  circum- 
stances make  it  proper  to  charge,  the  fee  should  generally  be  less  than 
the  case  of  other  clients. 


APPENDIX.  269 

Advertising. 

45.  General  Rule  as  to  Professional  and  Unprofessional  Adver- 
tising:.— Newspaper  advertisements,  circulars  and  business  cards  ten- 
dering professional  services  to  the  general  public  are  proper;  but 
special  solicitation  of  particular  individuals  to  "Become  cIienfs~sHbuld 
be  avoided.  Indirectadvertisement  for  business  by  furnishing  or  in- 
spiring editorials  or  press  notices  regarding  causes  in  which  the  attor- 
ney takes  part,  the  manner  in  which  they  were  conducted,  the  impor- 
tance of  his  position,  the  magnitude  of  the  interests  involved  and  al 
other  self-laud'ation  is  of  evil  tendency  and  wholly  unprofessional. 


270  APPENDIX. 


THE  IDEALS  OF  THE  AMERICAN  ADTOCATE— A  SYMPOSIUM. 


B¥  HON.   SIMEON  E.   BALDWIN. 

Justice  Supreme  Court  of  Connecticut. 

Every  true  man  works  toward  an  ideal.  He  imposes  it  upon  him- 
self. In  the  rough  but  impressive  phrase  of  Emerson,  he  has  hitched 
his  wagon  to  a  star . 

To  this  responsibility  of  the  individual  there  is  added  for  every 
lawyer  a  responsibility  that  comes  from  without.  He  owes  a  special 
duty  to  his  profession,  and  to  the  world  because  he  is  of  that  profes- 
sion. Nohlesse  oblige.  Nobility,  under  our  institutions,  does  not  belong 
to  any  individual.  If  some  foreign  sovereign  decorates  an  American 
with  a  title,  it  confers  no  pre-eminence  upon  him  here.  But  under  our 
institutions  that  nobility  of  purpose  and  character  which  belongs  to  the 
legal  profession  in  other  countries  beloHgs  to  it  in  equal  measure  in  the 
United  States.  It  is  everywhere,  as  concerns  its  most  conspicuous 
office — the  advocacy  of  causes — a  profession  of  strenuous  and  chivalric 
endeavor,  and  honored,  as  such,  now,  as  much  as  in  any  former  times 
or  other  lands. 

It  is  the  profession  of  those  who  contend  for  the  rights  of  others 
Altruism  and  personal  sacrifice  are  its  foundations.    Let  a  lawyer  plead 
his  own  cause,  and  he  finds,  as  the  proverb  says,  that  he  has  a  fool  for 
hie  client. 

The  Romans  put  this  strongly  in  their  Corpus  Juris:  "Advocates 
who  resolve  the  doubtful  fates  of  causes  and  by  the  strength  of  their 
defense  often  set  up  again  that  which  had  fallen,  and  restore  that 
which  was  weakened,  whether  in  public  or  in  private  concerns,  protect 
mankind  not  less  than  If  they  saved  country  and  home  by  battle  and 
by  wounds.  ,  For  in  our  warlike  empire  we  confide  not  in  those  alone 
who  contend  with  swords,  shields  and  breastplates,  but  in  advocates 
also;  for  those  who  manage  others' causes  fight  as,  confident  in  the 
strength  of  glorious  eloquence,  they  defend  the  hope  and  life  and  chil- 
dren of  those  in  peril."* 

This  sentiment  was  the  inspiration  of  Malesherbes,  when  he  claimed 
the  honor  of  defending  the  king,  whose  disregard  of  his  counsels  had 
cost  himhis  crown  and  was  to  cost  him  his  life.  It  was  the  inspiration 
of  Denman,  in  supporting  the  rights  of  Queen  Caroline;  of  Evarts, 
before  the  senate  of  the  United  States  in  resisting  the  impeachment  of 
President  Johnson. 

*Code  II,  7  de  advocatis  diversor  um  Jvdiciorum ,  14. 


APPENDIX.  271 

Great  occasions  like  these  come  seldom,  but  the  same  qualities  of 
advocacy  are  displayed  and  the  same  duties  of  advocacy  discharged 
daily  in  every  American  state.  Disregard  of  personal  interest  in  ful- 
fillment of  professional  obligations;  sacrifice  of  personal  convenience 
to  secure  the  interests  of  others ;  putting  all  the  powers  of  mind  and 
body,  in  one  supreme  effort  of  concentrated  energy,  at  the  service  of 
clients:  these  are  the  common  story  of  the  contests  of  the  bar. 

The  undue  multiplication  of  lawyers  in  the  United  States,  incident 
in  part  to  our  being  a  new  country,  and  in  part  to  our  being  a  great 
and  rich  one,  has  had  a  necessary  tendency  to  weaken  the  personal 
sense  of  what  is  due  from  him  to  his  profession,  on  the  part  of  each 
individual  member  of  it.  It  was  partly  to  counteract  this  tendency 
that  the  American  Bar  Association  was  organized  in  1878.  Its  influ- 
ence has  been  steadily  good.  It  has  not  only  consolidated  the  Ameri- 
can Bar,  but  has  helped  to  bring  together  that  of  every  state,  and  to  put 
before  it  a  high  standard  of  professional  honor  and  excellence.  It  has  had 
no  new  ideals  to  propose.  It  could  have  none.  The  ideals  of  the  ad- 
vocate have  been  unchanged  since  the  first  foundation,  on  a  sure  foot- 
ing, of  courts  of  justice.  They  are  all  bound  up  in  the  one  thought  of 
the  honor  of  the  profession.  Honesty  may  do  for  the  office  lawyer. 
Something  finer — honor — is  the  watchword  of  the  court-house. 

The  advocate  can  achieve  the  ideals  of  his  profession  without  elo- 
quence. Simple,  plain,  straightforward  statement  is  often  better  than 
eloquence.  Se  can  achieve  them  without  any  legal  learning  that 
could  be  called  profound.  A  fair  knowledge  of  law,  with  the  power  to 
make  the  most  of  what  he  knows,  is  generally  enough.  He  cannot 
achieve  them  without  a  high  sense  of  the  rights  of  man,  as  man;  with- 
out a  sincere  reverence  for  the  institutions  of  human  justice;  without 
patient,  self -forgetful,  chivalric  devotion  to  his  client's  cause. 

BY  HON.  HENRY  WADE   ROOERS. 

Dean  of  the  Yale  Law  School, 

You  ask  for  an  expression  of  my  views  on  the  "Ideals  of  the  Ameri- 
can Advocate,"  I  know  of  no  reason  why  an  American  advocate's 
ideals  should  be  different  from  those  of  an  English  advocate,  or  of  any 
lawyer  in  the  active  practice  of  his  profession,  whether  he  advises 
clients  in  his  office  or  addresses  courts  and  juries.  In  any  and  all  cases 
he  acts  unworthily  if  he  disregards  the  fact  that  he  Is  a  minister  of 
justice,  and  cannot  do,  as  a  lawyer,  anything  which  dishonors  him  as  a 
Christian  gentleman  and  a  law-abiding  member  of  society. 

When  one  reflects  upon  the  lawyer's  Ideals  there  comes  instinc- 
tively to  mind  Lord  Brougham's  celebrated  declaration  concerning  an 
advocate's  duty  to  his  client.  "An  advocate,"  he  said  in  his  famous 
defense  of  Queen  Caroline,  "in  the  discharge  of  his  duty  knows  but 
one  person  In  all  the  world,  and  that  person  is  bis  client.  To  save  that 
client  by  all  means  and  expedients,  and  at  all  hazards  and  costs  to 


272  APPENDIX. 

other  persons,  and  among  them  to  himself,  is  his  first  and  only  duty; 
and  in  performing  this  duty  he  must  not  regard  the  alarm,  the  tor- 
ments, the  destruction  he  may  bring  upon  others.  Separating  the  duty 
of  a  patriot  from  that  of  aa  advocate,  he  must  go  on,  reckless  of  con- 
sequences; though  it  should  be  his  unhappy  lot  to  involve  his  coun- 
try in  confusion."  This  is  a  most  extraordinary  and  whuUy  indefen- 
sible and  unworthy  statement  of  a  lawyer's  duty.  Brougham  was  un- 
doubtedly a  remarkable  man  who  possessed  great  talents,  enjoyed  a 
wide  fame  and  played  a  very  conspicuous  part  in  public  affairs.  He 
devoted  himself  to  many  things.  He  was  not  merely  a  lawyer,  but  was 
a  man  of  letters,  a  man  of  science,  a  statesman  and  one  who  aspired  to 
excel  in  all  things  and  who  directed  his  attention  to  many  branches  of 
human  knowledge.  He  was  not  the  ideal  lawyer.  The  law  was  not 
congenial  to  him  and  in  his  early  life  he  spoke  of  it  as  "the  cursedestof 
all  cursed  professions,'"  and  referred  to  it  as  an  "odious''  profession. 
We  do  not  look  to  such  a  man  for  our  professional  ideals.  In  his  own 
day  there  were  better  and  greater  advocates  at  the  bar,  and  on  the 
bench  more  learned  judges.  We  are  told  that  he  wanted  that  moral 
elevation  which  inspires  confidenoe  and  respect,  and  which  is  essential 
to  lasting  fame.  The  statement  I  have  quoted  from  him  proves  this 
estimate  of  him  to  be  correct.  If  his  declaration  were  to  be  accepted 
no  honest  man  could  enter  the  legal  profession,  or  having  entered  it 
could  remain  in  it. 

As  matter  of  fact  the  only  men  who  attain  to  any  great  degree  of 
eminence  in  the  profession  are,  as  a  rule,  men  of  conscience  and  honor. 
It  was  said  in  Lord  Hale's  day  that  there  were  as  many  honest  men 
among  lawyers,  proportionately,  as  among  any  profession  of  men  in 
England,  not  excepting  the  divines.  I  believe  that  is  true  of  the  pro- 
fession in  the  United  States  to-day.  The  lawyer  should  never  assert  to 
court,  jury  or  client  what  he  does  not  believe  to  be  the  truth.  He 
should  never  resort  to  practices  which  are  not  in  conformity  with  the 
principles  of  morality. 

We  live,  no  doubt,  in  a  commercial  age.  Its  aspirations  are  for 
wealth,  more  than  for  renown  or  service.  It  is  common  observation 
that 

"The  learned  pate 
Ducks  to  the  golden  fool." 

The  bar  may  not  have  escaped  entirely  the  insidious  influence.  No 
calling,  not  even  the  ministry,  has  been  altogether  untouched  by  it. 
Every  profession  has  its  mercenary  side.  But  in  no  one  of  the  learned 
professions  is  avarice  the  leading  aim.  In  Robert  Louis  Stevenson's 
essay  on  "The  Morality  of  the  Profession  of  Letters"  can  be  found  this 
admirable  statement:  "The  salary  in  any  business  under  heaven  is  not 
the  only,  nor  indeed  the  first  question.  That  you  should  continue  to 
exist  Is  a  matter  for  your  own  consideration;  but  that  your  business 
should  be  first  honest,  and  second  useful,  are  points  in  which  honor 


APPENDIX.  273 

and  morality  are  concerned."  The  ethics  of  the  profession  require 
that  a  member  of  the  bar  shall  be  lirst  an  honest  man.  He  must  live 
in  rectitude  and  cherish  his  personal  honor,  not  forgetting  that  per- 
sonal honor  is  the  distinguishing  badge  of  the  legal  profession. 

BY  HON.   V.  M.  ROSE. 

Bx-President  American  Bar  Association. 

It  was  a  maxim  of  Cato  the  Censor  that  the  orator  "is  a  good  man 
skilled  in  spealiing.''  Quintilian,  who  is  more  emphatic,  says :  '*Xow, 
according  to  my  definition,  no  man  can  be  a  complete  orator  unless  he 
is  a  good  man.  I  therefore  require  that  he  should  be  not  only  all- 
accomplished  in  eloquence,  but  possessed  of  every  moral  virtue." 

As  the  art  of  public  speaking  is  one  that  most  lawyers  must  exer- 
cise, these  sayings  have  often  been  applied  to  our  profession.  They 
may  seem  hard  at  first  sight,  since  moral  perfection  is  not  attainable  in 
our  present  state  of  existence.  But  it  must  be  remembered  that  these 
distinguished  men  were  speaking  of  the  ideal  orator;  a  model  for  aspi- 
ration, though  too  lofty  for  unimpaired  realization.  The  complete  ora- 
tor and  the  perfect  man  are  equally  unknown;  but  one  may  be  a  good 
man  though  subject  to  many  frailties,  provided  that  these  are  not  so 
grave  or  numerous  as  to  stain  his  whole  character.  There  are  differ- 
ent degrees  of  virtue,  but  the  habitual  exercise  of  a  few  that  are  fun- 
damental, such  as  are  enjoined  by  legal  ethics,  tends  to  a  gradual  and 
general  elevation  of  character.  The  central  idea  intended  to  be  im- 
parted by  these  two  classical  moralists  is  undoubtedly  a  true  one. 

These  rules  are  not  the  work  of  Pharisaism,  or  the  outcome  of 
frivolous  and  over-refining  casuistry;  they  are  practical,  well  defined, 
profitable;  and  are  based  on  long  observation  and  experience.  In  so 
far  as  the  lawyer  fails  to  live  up  to  them  he  will  derogate  from  his  own 
best  interests,  will  bring  reproach  on  himself  and  his  profession,  and 
will  lay  up  provision  for  the  day  of  regret  and  remorse.  However 
great  our  apostasy  may  be,  the  standards,  handed  down  from  genera- 
tion to  generation,  are  still  there;  and  if  we  can  by  any  effort  on  our 
part  render  them  ujore  commanding  and  serviceable,  the  line  of  duty 
is  too  plain  to  admit  of  hesitation  or  dispute.  They  do  not  cuibracc 
the  entire  sphere  of  moral  sentiments;  but  they  do  include  the  whole 
circumference  of  professional  duties;  erecting  standards  higher  and 
more  exacting  than  those  which  are  commonly  insisted  upon;  stan- 
dards of  courtesy,  fairness,  honesty,  fidelity,  truthfulness,  good  faith; 
and  a  quality  of  disinterestedness  by  no  means  common;  in  short,  all  of 
the  attributes  that  go  to  make  up  the  character  of  the  true  gentleman. 
The  lawyer  who  lives  up  to  these  mandates  stands  on  a  proud  emi- 
nence; his  life,  if  he  is  not  otherwise  deficient,  and  if  be  is  not  made 
the  victim  of  unrelenting  and  implacable  fate,  will  be  worth  much  in 
the  world ;  while  his  influence  will  be  a  power  in  the  land. 

A  good  name  is  better  than  great  riches,  and  words  spoken  by  one 
18 


274  APPENDIX. 

who  sets  a  praiseworthy  and  consistent  example  to  his  fellowmen  will 
be  golden;  while  those  uttered  by  a  man  of  profligate  habits  and  evil 
life  will  be  as  chaff,  like  those  of  the  Duke  of  Wharton,  the  most 
brilliant  orator  of  his  time,  but  unprincipled,  and  the  slave  of  many 
vices,  described  by  Pope,  who  knew  him  well,  as  possessing 
"An  angel  tongue,  wliich  no  man  can  dissuade." 

Certainly  the  career  of  the  lawyer  is  beset  with  difficulties,  and  is 
exposed  to  many  temptations;  but  these  are  only  multiplied  and  en- 
hanced by  evil  practices. 

Consistently  with  allotted  space  only  one  other  point  may  be  briefly 
mentioned.  Fraternal  feeling  at  the  bar  is  something  that  softens  the 
asperity  of  controversy,  tends  to  the  better  administration  of  justice, 
and  adds  to  the  pleasures  of  life.  It  is  neither  so  active  nor  so  potent 
in  our  country  as  in  others  that  might  be  named.  The  reasons  are  ob- 
vious; and  are  closely  allied  with  the  immense  expanse  of  our  territory, 
and  the  want  of  compactness  of  much  of  our  population,  the  facility 
of  admisson  to  the  bar  which  is  often  indulged,  and  the  general  loose- 
ness of  discipline.  The  American  lawyer  is  frequently  overworked. 
In  England,  France  and  Italy  the  advocate  is  relieved  of  much  drudg- 
ery by  the  collaboration  of  attorneys,  a  well  trained  body  of  assis- 
tants, leaving  him  more  time  for  social  duties,  the  amenities  of  life, 
and  the  widening  of  the  field  of  endeavor.  Other  restrictions  peculiar 
to  our  situation  might  be  recited;  but  however  serious  the  obstacles 
may  be,  it  ii  nevertheless  true  that  the  lawyer  owes  au  affectionate  al- 
legiance to  his  profession,  which  always  demands  a  grateful  remem- 
brance; and  that  he  should  bring  ungrudginglj-  his  quota  of  influence 
to  the  work  of  elevating  the  tone  of  the  bar.  cheerfully  lending  his  aid 
to  secure  the  harmony  of  its  members,  and  to  the  promotion  of  its 
dignity,  honor  and  usefulness. 

BY  HON.  .lOHN   F.    PIIIL.IP»i. 

United  States  District  Judge. 

As  law  is  '-the  perfection  of  human  reason,'"  it  ought  to  be  "the 
pride  of  human  intellect,"  and  the  practice  of  it  should  be  pursued 
rather  for  its  honors  than  its  pelf. 

The  spirit  of  commercialism  has  too  largely  taken  possession  of  the 
profession.  Fee  getting  is  the  ruling  passion,  the  effect  of  which  is 
to  narrow  the  mental  horizon  and  eat  out  the  heart.  The  ancient 
chivalry  and  sentiment  of  the  advocate  move  him  little  nowadays,  un- 
less h«  perceives  in  the  occasion  some  alchemy  for  transmuting  the 
cause  into  gold.  The  ewe  lamb  of  the  orphan  and  the  milch  cow  of 
the  widow  are  turned  over  for  protection  to  the  shyster,  who,  if  he 
win,  takes  the  lamb  and  the  cow  for  his  fee.  The  most  fruitful  source 
of  litigation  to-day  is  on  the  increase  because  lawyer  and  client  stand 
as  full  partners  in  the  spoil. 

The  noblest  quality  of  an  advocate  is  intellectual  honesty.      The 


APPENDIX.  i275 

mind,  whatever  its  endowments,  tbat  "toils  in  miscliief" — tliat  is  not 
honest  with  itself — is  apt  to  retlect  a  distorted  image  on  court  and  jury. 
The  practice  of  making  counterfeit  presentment  naturally  enough  ren- 
ders the  mind  oblique  and  sinister.  By  progressive  steps  it  loses  the 
sense  of  distinction  between  right  and  wrong.  Whereas,  the  mental 
habit  of  presenting  the  law  and  the  facts  as  they  are  brings  the  mind 
and  heart  into  co-operation,  exciting  the  sympathy  born  of  candor, 
and  exerting  the  power  that  ever  lives  in  trutli. 

Another  ideal  of  the  advocate  is  that  he  should  be  the  man  of  "liigh 
erected  thought  seated  in  the  heart  of  courtesy."  Obsequiousness 
evinces  moral  cowardice  and  mental  weakness.  Courtesy,  without 
sincerity,  is  a  false  pretense.  Amenity  at  the  bar,  if  used  merely  as  a 
feint  to  aid  a  sinister  purpose,  excites  only  disgust.  There  is  no  su- 
perior in  odium  to  the  professional  lago.  The  charlatan,  if  he  be  rea- 
sonably honest  is  more  tolerable. 

While  the  advocate  cannot  always  choose  his  client,  yet,  if  he  con- 
stantly be  found  in  the  advocacy  of  questionable  transactions  it  eviden- 
ces a  readiness  to  make  merchandise  of  his  learning  regardless  of 
<>,thics.  He  may,  with  propriety,  urge  a  case  against  his  opinion  of  the 
better  law,  because  the  law  of  the  case  is  what  the  court  may  declare 
it  to  be.  But  he  cannot,  with  self-respect,  advocate  a  cause  he  believes 
to  be  dishonest,  or  hurtful  to  societj',  or  dangerous  to  the  state.  Ci(!ero 
said,  a  lawyer  may  defend  the  guilty,  under  limitations,  but  his  duty 
will  never  permit  him  to  accuse  the  innocent.  Id  facere  lans  est  deret, 
non  quod  licet. 

No  respectable  lawyer  can  encourage  litigation  or  foment  petty 
strife.  The  street-soliciting  advocate  is  the  burning  shame  of  the  l>ar, 
whose  dislike  it  were  an  honor  to  share  by  bench  and  bar. 

The  successful  advocate  now  is  logical  and  analytical  rather  than 
rhetorical  and  glittering.  He  is  less  original  and  inventive,  because  of 
accumulated  precedents  tending  to  develop  the  faculty  of  discriminat- 
ing assimilation.  He  looks  to  ultimate  results  rather  than  present 
effect. 

HY   HON.  T.   A.  NHKKMOOD. 

Ex-Jtistice  Midsouri  Supreme  Court. 

In  the  English  and  American  Law,  '•advocate'"  is  the  same  as 
'•counsel,"  ••counselor''  or  ••barrister."    Web.  Diet. 

In  order  to  answer  the  requlreuients  of  the  idea  conveyed  by  the 
above  title,  premise  may  be  assumed  in  the  first  place,  that  the  person 
to  be  discussed  has,  of  course,  a  thorough  knowledge  of  his  profession, 
as  well  as  of  cognate  science,  for,  as  Sir  Walter  Scott  so  tergely  ob- 
serves, "a  lawyer  who  knows  neither  literature  nor  history  Is  a  mere 
mechanic." 

Secondly — He  must  be  gifted  with  an  Imagination  of  undoubted 
vigor  in  order  to  be  able  to  look  over  the  contemplated  forensic  battle- 
lield,  see  and  anticipate  what  the  adversary  Is  likely  to  do,  and  thus 


276  APPENDIX. 

put  himself  in  his  place.  Judge  Elliott  in  his  General  Practice  very 
deservedly  bestows  the  mead  of  great  praise  on  the  imaginative  faculty, 
as  being  a  necessity  of  legal  success.  And  Beaconsfiejd  asserted  the 
imagination  to  be  the  most  important  factor  in  the  science  of  human 
government. 

Napoleon,  too,  as  Bourienne  relates,  employed  the  mentioned  fac- 
ulty to  great  and  successful  advantage  when,  in  tlie  winter  preceding 
his  joining  battle  with  the  Austrian  Melas,  he  used  a  map  of  Italy,  on 
which  with  pins  tipped  with  black  and  red  sealing  wax.  he  delineated 
the  respective  positions  of  the  Austrian  and  French  troops,  and  the 
location  of  the  battle-field.  Subsequent  events  showed  a  victory  won 
by  Napoleon,  where,  and  in  the  manner  and  the  position  predicted. 

Thirdly — He  must  have  great  power  and  force  of  expression;  this 
faculty  usually  accompanies  the  imaginative  faculty,  because  whatever 
a  man  vividly  sees  with  mental  vision,  that  also  can  he  vividly  de- 
scribe. Of  course  the  capability  of  speaking  fluently  and  without  em- 
barrassment, is  seldom  attained  except  hy  przctice,  although  Lord  Clive, 
in  his  parliamentary  speech,  is  an  illustrious  instance  to  the  contrary. 
Charles  James  Fox,  the  ablest  debator  the  world  ever  saw,  became 
such,  he  declared,  by  boring  with  his  forensic  efforts,  successive  par- 
liaments for  years. 

Fourthly — He  should  be  eloquent.  In  general  the  possessor  of  a  noble 
imagination,  one  that  can  picture  forth  what  the  imaginer  desires  to 
portray,  in  "words  that  burn,"'  coupled  with  the  capacity  to  think  on 
foot,  is  almost,  of  necessity,  eloquent.  But  who  shall  say  in  what  elo- 
quence cons'Sts?  Like  certain  liquids  (not  altogethei  unknown  lo  the 
profession),  it  can  only  be  tested  by  tasting. 

Fifthly — He  should  be  logically  as  well  as  legally  accurate.  Such 
bifold  accuracy  is  not  at  all  inconsistent  with  splendor  of  imagery  nor 
an  appropriate  flow  of  words.  S.  S.  Prentiss  of  Mississippi,  Rufus 
Ohoate  of  Massachusetts,  are  conspicuous  examples  of  this  assertion's 
correctness. 

Sixthly — He  should  by  constant  study  keep  his  armour  burnished. 
If  "eternal  vigilance  is  the  price  of  liberty,'*  so  also  is  eternal  Indus- 
try the  price  of  law. 

Seventhly — He  should,  regardless  of  public  clamor  or  adverse  criti- 
cism, do  his  duty  as  he  conscientiously  sees  it.  If  he  chooses  to  de- 
fend a  man  charged  with  crime,  he  will  not  be  slack  in  his  diligence 
nor  in  his  vigilance  because  he  believes,  or  even  because  he  knoics  the 
accused  is  guilty.  Every  man,  though  guilty,  is  entitled  to  the  same 
orderly  method  of  procedure,  the  same  scrupulous  observance  of  all 
legal  rights  and  forms,  as  if  wholly  innocent  of  the  charge.  Captain 
Kidd,  placed  on  trial  for  piracy,  is  as  safely  guarded  by  the  law,  as 
would  be  the  archangel  Gabriel,  when  charged  with  a  like  offense. 
And  this  will  be  true  so  long  as  sections  22  and  30  of  our  Bill  of 
Rights  are  obeyed.  Although  guilty,  the  accused  has  still  a  right  to 
be  tried  according  to  the  law  of  the  land;  "a  law  which  hears  before 


APPENDIX.  277 

it  condemns;  which  proceeds  upon  inquiry  and  renders  judgment  only 
after  trial/'  Thus  tried,  the  accused  is  entitled  to  counsel  to  defend 
him.  If  counsel  defend  him.  then  such  defense  is  a  legal  and  rightful 
defense,  and  casts  no  more  discredit  on  such  counsel  thus  engaged,  than 
it  casts  on  those  provisions  of  the  organic  law  which  authorize  and  pro- 
vide for  such  defense,  or  on  the  court  which  enforces  them." 

BY  HON.  WIl^LIAM  P.   LORD. 

Kx- Justice  Supreme  Court  of  Oregon. 

Does  the  practice  of  law,  as  affected  by  some  forms  of  business 
conditions,  as  now  existing,  tend  to  dull  the  moral  perceptions  of  the 
lawyer  and  lower  the  standard  of  professional  duty  •*  Certainly  there 
has  been  no  time  in  the  past,  when  business  schemes  were  more  vast, 
or  more  far-reaching  in  their  results,  or  when  they  have  offered  larger 
compensation  for  professional  service.  The  intense  pressure  of  mod- 
ern life  in  all  its  phases  of  industrial  and  commercial  activitj',  of  cor- 
porate development  and  trust  consolidation,  aggregating  immense 
business  capital,  have  given  rise  to  an  almost  endless  variety  of  legal 
questions  and  controversies  reciuiring  professional  advice  ana  service. 
These  contentions  embrace  nearly  every  branch  of  learning  and  re- 
quire extensive  knowledge  and  trained  abilities  for  their  investigation 
and  discussion;  they  also  involve  large  pecuniary  interests  which  offer 
correspondingly  large  compensation  for  competent  service.  But  these 
circumstance*  do  not  necessarily  involve  the  performance  of  profes- 
sional service  not  consistent  with  the  strictest  rules  of  propriety  and 
manly  rectitude.  At  the  same  time,  they  may  afford  the  opportunity 
for  high  talent  to  degrade  its  service  for  high  pay  by  helping  a  swind- 
ling concern  to  organize  and  conduct  its  fraudulent  business  and  in 
defending  its  promoters  from  exposure  and  punishment.  The  dere- 
liction of  professional  duty  in  such  cases  would  be  the  same,  whether 
the  services  were  rendered  for  a  large  or  small  concern,  the  only  dif- 
ference being  that  the  larger  would  be  able  to  offer  greater  compensa- 
tion than  the  smaller,  as  an  inducement  for  the  reciuired  service.  The 
danger  lies  in  the  more  tempting  reward  which  great  aggregations  of 
wealth  are  able  to  offer  for  services  of  doubtful  propriety  or  deviation 
from  professional  rectitude.  The  commercial  spirit  of  the  age  has 
greatly  quickened  the  desire  and  increased  the  opportunities  for  the 
acquisition  of  wealth.  The  lawyer  Is  not  exempt  from  the  desires  or 
frailties  common  to  humanity.  Like  other  men,  he  wants  t©  accu- 
mulate wealth  for  the  comforts  and  advantages,  the  Influence  and 
power  which  Its  possession  Is  supposed  to  bring.  But,  in  his  case  there 
are  some  influences  at  work  to  restrain  the  evil  tendency  of  Its  too  ar- 
dent pursuit,  and  preserve  him  from  the  temptations  to  violate  his  pro- 
fessional duty  for  sordid  considerations. 

The  profession  of  law  furnishes  the  means  to  obtain  an  honest  live- 
lihood and  honorable  distinction.  These  are  worthy  Inducements  for 
the  employment  of  high  talents  and  cbaracter.    To  become  a  member 


278  APPENDIX. 

of  the  legal  profession  involves  a  course  of  study  upon  legal  and 
equitable  subjects  and  their  relation  to  the  material  interests  and  well- 
being  of  society,  which  study  is  calculated  to  train  and  expand  the 
mind,  cultivate  its  moral  sentiments,  and  fill  its  stores  with  useful 
knowledge.  The  training  to  equip  a  lawyer  for  the  practice  of  his 
profession  is  an  education  in  good  morals  as  well  as  knowledge  of  the 
principles  and  philosophy  of  the  law.  His  duties  to  his  client,  rein- 
forced by  his  oath,  bind  him  in  their  performance  to  a  course  of  manly 
rectitude  and  scrupulous  integrity.  The  high  intellectual  and  ethical 
standard  which  the  legal  profession,  as  a  Dody,  and  its  law  writers, 
have  insistently  demanded  to  be  maintained,  as  a  barrier  against 
temptation  to  corrupt  practices,  and  preserve  the  prestige  of  the  pro- 
fession, have  tended  to  elevate  his  ideals  of  duty,  and  develop  the  best 
qualities  of  liis  character.  There  are  influences  constantly  at  work  to 
restrain  the  lawyer  from  deviations  of  duty,  to  develop  the  good  im- 
pulses of  his  nature,  and  to  stimulate  his  ambition  to  a  life  of  useful- 
ness and  honorable  distinction  among  men.  The  lawyer  is  not  de- 
generating in  moral  or  intellectual  culture.  The  bar  still  maintains 
its  rank  for  deep  learning,  high  mental  discipline  and  retined  moral 
culture.  The  bench,  drawn  from  its  ranks,  represents  the  best  product 
of  civilization  and  is  the  bulwark  of  constitutional  freedom.  It  is  true 
there  are  shysters,  but  they  are  few  and  exceptional,  usually  known  to 
the  public  and  profession  and  shunned  by  both,  except  those  wlio  need 
their  services  and  create  the  supply.  Formerly  the  business  of  the 
law  was  limited  as  compared  with  its  present  volume  and  the  affairs  to 
which  it  was  applied,  plain  and  simple,  as  compared  with  the  intricate 
and  complex  relations  to  which  it  must  now  be  adapted.  The  old  law- 
yer was  a  fine  specimen  of  the  legal  profession.  He  was  able  and 
learned,  eloquent  and  dignified.  He  prepared  his  speeches  with  care 
and  delivered  them  with  effect.  He  was  ambitious  of  distinction  and 
his  talents  gave  him  influence  and  standing  in  the  community,  and  in- 
spired its  respect  and  confidence.  But  times  change  and  men  charge 
with  them.  The  advance  of  civilization  and  its  gigantic  business 
operation  have  wrought  changes  which  have  affected  the  legal  pro- 
fession. The  lawyer  of  to-day  is  compelled  to  keep  pace  with  its 
movements.  There  is  less  time  and  opportunity  for  speech-making 
and  the  display  of  oratory;  but  there  is  no  abatement  in  the  demand 
for  highly  trained  lawyers  of  elevated  character,  endowed  with  ex- 
tensive learning.  The  improved  methods  for  committing  thought  to 
paper  have  enabled  the  lawyer  to  perform  a  vast  amount  of  legal  labor 
and  submit  his  opinions  in  a  form  better  calculated  to  influence  and 
convince  the  mind.  He  is  equal  to  his  day  and  generation.  The  bar 
has  not  declined  in  character,  power  or  influence.  It  still  maintains  the 
moral  and  intellectual  standard  of  the  law. 

So  long  as  the  law  prescribes,  as  requisites  for  admission  to  the  bar, 
fair  abilities,  good  morals  and  a  knowledge  of  its  principles,  and  the 
court  rigorously  enforces  compliance  with  these  conditions;  so  long  as 


APPENDIX.  ■  279 

the  study  and  practice  of  the  law  shall  influence  character  tending  to 
develop  the  mental  faculties,  refine  the  moral  sense,  and  inspire  aspi- 
rations for  intellectual  excellence,  and  honorable  distinction ;  so  long 
as  the  bar  associations  shall  maintain  its  high  ideals  of  intellectual  cul- 
ture and  professional  ethics,  and  exclude  from  its  associations  mem- 
bers guilty  of  moral  delinquency,  and  cause  to  be  rigorously  weeded 
out  from  the  profession  all  lawyers  known  to  be  engaged  in  corrupt 
practices;  so  long  as  legal  writers  and  journals  continue  to  urge  the 
need  of  culture,  learning  and  character,  as  essential  to  equip  the  law- 
yer, and  of  fidelity,  honesty  and  strict  integrity  in  the  performance  of 
his  duties,  and  mercilessly  expose  and  denounce  all  conduct,  or  prac- 
tices involving  derelictions  of  duty  and  bringing  reproach  upon  the 
legal  profession,  there  will  be  no  deterioration  in  the  high  standing  and 
characcer  of  the  lawyer,  nor  loss  of  influence  and  power,  or  lowering 
of  the  high  intellectual  and  ethical  standards,  so  long  maintained  by 
the  profession. 


INDEX 

A. 


ABSTRACT, 

proper  abstract  of  the  record,  174. 
ADMISSIONS, 

admissions  by  counsel  or  his  client,  1G4. 
ADVERTISING, 

general  considerations  determining  the  propriety  of  advertising 
methods,  246. 

legal  directories  and  newspaper  notoriety  aa  advertising  methods 
247. 

the  gross  impropriety  of  advertising  for  divorce  litigation,  249. 

politics  as  an  advertising  medium,  251. 

social  acquaintance  and  club  life  as  methods  of  advertising,  252. 

pretending  to  be  learned  or  whelmed  with  business,  253. 

the  impropriety  of  employing  "runners,"  254. 

the  propriety  of  -'buying  up"  causes  of  action,  256. 

the  propriety  of  stealing  another  attorney's  practice,  257. 

the  test  of  advertising  methods,  258. 

the  value  of  office  furniture  and  modern  business  methods  as  suc- 
cessful means  of  advertising,  257. 
ADVOCACY, 

stating  personal  belief  as  to  guilt  of  accused  in  opening  case  for  the 
state,  94. 
ALIBI, 

how  to  breali  down  a  false  a/j7>j,  101. 
ANTICIPATION, 

anticipating  defendant's  case,  24. 
ARGUMENT, 

effect  of  argument  in  demolishing  plaintiff's  case.  34. 

right  to  argue  upon  antecedent  evidence,  73. 

requisites  and  value  of  oral  argument  in  addressing  the  court,.  177. 

discussion  of  principle  versus  the  citation  of  authority  in  advocate's 
brief,  179. 


282  I-NDEX. 

ARRANGEMENT, 

arranging  and  marshalling  the  evidence  before  trial,  6. 

order  and  arrangement  of  facts  in  opening  statement,  26. 

arrangement  of  facts  with  regard  to  probabilities  in  defendant's 
opening  statement,  96. 

proper  and  artistic  arrangement  of  evidence  in  defendant's  opening 
statement,  37. 

order  of  time  to  be  observed  in  eliciting  evidence,  45. 

order  and  arrnngement  of  the  reply.  79. 
ASSIGNMENT  OF  ERRORS.     See  Ekuors. 
ATTENTION, 

securing  attention  of  court  and  jury,  76. 

B. 

BRIEF, 

the  requisites  and  value  of  a  lawyer's  brief,  172. 

clearness  and  brevity  as   important  characteristics  of  advocate's 

brief,  176. 
literary  style  of  advocate's  brief,  176. 
superior  value  of  oral  argument  over  printed  briefs,  177. 
discussion  of  principle  versus  the  citation  of  authority  in  advocate's 

brief,  179. 

c. 

CHARACTER, 

emphasizing  good  character  of  accused  in  closing  address  for  the 
defense,  121. 
CLIENT. 

listening  to  the  client's  complaint.  4. 

sifting  the  client's  story,  5. 

admissions  by  client,  164. 

the  supremacy  of  the  client's  interest  as  determining  the  advo- 
cate's conduct,  227. 

is  truth  a  higher  obligation  than  the  interests  of  the  advocate's 
client,  22S. 
CLOSING  ADDRESS, 

as  to  the  closing  address  for  the  defendant,  see  Summing  Up. 

as  to  the  closing  address  for  the  plaintiff,  see  Reply. 
COACHING, 

interviewing  and  coaching  witnesses,  14. 
CODE, 

as  to  code  of  ethics,  see  Ethics. 
COMMON  SENSE, 

value  of  common  sense  in  advocacy,  1. 


INDEX.  283 

COMPENSATION, 

general  considerations  determiDing  the  amount  of  compensation  for 

legal  services,  238. 
gratuitous  services  in  behalf  of  indigent  prisoners,  240. 
duty  of  advocate  to  observe  rules  as  to  compensation  imposed  by 

commercial  law  association  of  which  he  is  a  member,  241. 
the  propriety  of  contracting  for  a  contingent  fee.  242. 
when  an  advocate  may  contract  for  bis  services  on  a  salary  basic^ 

245. 
COMPLAINT, 

listening  to  the  client's  complaint,  4. 

CONCENTRATION, 

concentration  as  a  cardinal  requisite  to  success  at  the  bar,  21. 

CONCISENESS, 

conciseness  in  the  reply,  84. 

CONSULTATION, 

the  art  of  consultation.  3. 

listening  to  the  client's  complaint,  4. 

sifting  the  client's  story,  5. 

interviewing  and  coaching  witnesses,  14. 

interviewing  the  adversarj-  party — interrogatories,  16. 

CONTINGENT  FEE, 

the  propriety  of  contracting  for  a  contingent  fee,  242. 

COUNSELOR, 

consultation  and  the  writing  of  legal  opinions  as   huTative  features 

of  the  counselor's  office  work,  3. 
COURTESY, 

good  temper  of  the  cross-examiner,  54. 

COURTS, 

securing  attention  of  court  and  jury,  76. 

proper  tactics  in  overcoming  the  preconceptions  of  the  judge,  167. 

assuming  that  the  court  is  ignorant  of  the  law,  167. 

requisites  and  value  of  oral  argument  in  addressing  the  court,  177. 

how  to  meet  interruptions  by  the  court,  181. 

CRIMINAL  DEFENSE, 

the  young  lawyer  before  the  police  magistrate,  106. 

how  far  defense  should  show  its  hand  before  committing  magistrate, 

108. 
how  to  deal  with  a  defective  indictment,  110. 
what  and  how  many  defenses  to  make,  110. 
opening  statement  of  counsel  for  defendant.  111. 
methods  of  objection  to  evidence  by  defense,  112. 
under  criminal  defense  emphasizing  mistakes  of  inacuurate  wit- 
nesses, 113, 
general  rules  ag  to  cross-examination  by  the  defense,  114. 


284  ,     INDEX. 

CRIMINAL  DEFENSE— Continued. 

drawing  out  an  opposing  witness  in  cross-examination  by  the  de- 
fanse,  115. 

how  to  handle  hostile  witnesses  in  croas-examihation  by  the  de- 
fense, lit). 

whether  or  not  witnesses  should  be  called  or  case  submitted  on 
state's  evidence,  117. 

calling  attention  to  absence  of  motive  on  part  of  accused  in  closing 
address  for  the  defense,  118. 

calling  attention  to  motive  of  prosecuting  witness  in  closing  ad- 
dress for  the  defense.  119. 

einphasix:ing  good  character  of  accused  in  •losing  address  for  the 
defense,  121. 
CRIMINAL  PROSECUTION, 

order  of  a  criminal  trial,  88. 

arraignment  of  accused,  89. 

prosecution  not  per8e(!Ution,  90. 

avoiding  argument  in  opening  statement,  92. 

avoiding  exaggeration  in  opening  statement,  93. 

use  of  conventional   and   undignified   phrased  in  opening  state- 
ment. 93. 

stating  personal  belief  as  to  guilt  of  accused  in  opening  state- 
ment, 94. 

interpreting  the  indictment  to  the  jury  in  the  opening  statement,  94. 

only  facts  bearing  directly  on  the  issue  to  be  stated  in  opening 
statement.  95. 

anticipating  the  defense  in  opening  statement,  96. 

order  and  arrangement  of  the  evidence,  97. 

overlaying  the  case  with  too  much  evidence,  97. 

police  te»timony  not  to  be  implicitly  relied  upon,  99. 

concentrating  attack  on  main  defenses  of  accused,  100. 

taking  advantage  of  defendant's  cross-examination,  101, 

how  to  break  down  a  false  alibi,  101. 

temperate  reply  versus  earnest  appeal,  in  closing  address  for  the 
state,  104. 

explaining  away  difficult  and  awkward  points  in  the  evidence  in 
closing  address  for  the  defense,  120. 

general  considerations  as  to  closing  address  for  the  defense,  122. 
CROSS-EXAMINATION, 

knowledge  of  human  nature  as  necessary  to  proper  cross-examina- 
tion, 50. 

dangers  of  cross-examination,  51. 

good  temper  of  the  cross-examiner.  54. 

prejudice  and  other  hostile  motives  on  the  part  of  the  witness  to  be 
emphasized  on  cross-examination,  56. 

manner,  style  and  tone  of  voice  of  cross-examiner,  58. 


INDEX.  285 

CK0SS-EXAMINATI0:N— Continued. 

asking  questions  liable  to  call  forth  adverse  replies,  60. 

cross-examination  of  evasive  and  hostile  witnesses,  61. 

cross-examiner  should  never  put  a  question  without  being  able  to 
give  a  reason  for  it,  62. 

cross-examination  for  impugning  the  veracity  of  the  witness,  62. 

value  of  long  experience  in  determining  the  proper  questions  to  be 
asked,  63.  ' 

how  not  to  cross-examine,  64. 

general  rules  as  to  cross-examination  by  the  defense  in  a  criminal 
prosecution,  114. 

drawing  out  an  opposing  witness  in  cross-examination  by  the  de- 
fense in  a  criminal  prosecution,  115. 

how  to  handle  hostile  witnesses  in  cross-examination  by  the  defense 
in  a  criminal  prosecution,  116. 

I). 

DANGERS  OF  ADVOCACY, 

what  to  do  with  weak  or  dangerous  points  in  the  line  9f  battle,  18. 
dangers  of  cross-examination,  51. 
dangers  of  re-examination,  66. 

pursuing  an  equivocal  reply  of  one's  own  witness  elicited  on  cross- 
examination,  70. 
points  of  danger  in  defendant's  summing  up,  73. 
how  to  take  care  of  the  weak  point  in  a  case,  163. 
how  to  meet  an  unscrupulous  and  ill-natured  opponent,  168. 
danger  in  wandering  from  the  main  point  of  a  case,  170. 
danger  of  achieving  a  reputation  as  a  wit,  202. 

DEFENDANT'S  OPENING, 

general  rule.  32. 

wlien  and  where  to  open  the  attack,  33. 

effect  of  argument  in  demolishing  plaintiff's  case,  34. 

use  of  plaintiff's  witnesses  to  prove  defendant's  case,  34. 

force  of  elO(iuence  in  defendant's  opening  speech,  35. 
"      misstatements  and  false  representations  by  defendant  in  opening 
statement,  36. 

arrangement  of  facts  with  regard  to  probabilities  in  defendant's 
opening  statement,  36. 

proper  and  artistic  arrangement  of  evidence  in  defendant's  opening 
statement,  37. 

answering  exaggerated  or  improbable  evidence,  37. 

effect  of  defendant  praising  his  own  witnesses,  38. 

points  of  rhetoric  to  be  observed  by  defendant's  attorney,  3!) 

opening  statement  of  counsel  for  defendant  in  a  criminal  prosecu- 
tion, 111. 


286  INDEX. 

DEFENSE.    See  Criminal  Defense. 
DELAY, 

under  what  condition  an  advocate  profits  by  delay,  168. 
DEPOSITIONS, 

superior  value  of  oral  testimony  to  written  depositions,  161. 
DIRECT  EXAMINATION, 

all  of  the  facts  must  be  elicited.  41. 

the  fewest  possible  questions  and  interruptions,  42. 

proper  and  improper  questions,  43. 

irritable  and  unintelligible  questions,  44. 

order  of  time  to  be  observed  in  eliciting  evidence,  45. 

cross-examining  one's  own  witness,  46. 

cautioning  witnesses  about  rules  of  evidence,  47. 

leading  a  witness,  48. 

unnecessary  rapidity  and  repetition,  48. 

verbose  questions  to  be  avoided  in  examining  witnesses,  49. 

E. 

ELOCUTION, 

points  of  rhetoric  to  be  observed  by  defendant's  attorney,  39. 

what  modulation  of  voice  assists  the  cross-examiner  in  his  examina- 
tion, 58. 

use  of  illustrations  and  conventional  phrases,  84. 

temperate  and  accurate  style,  86. 

peroration,  87. 

avoiding  exaggerated  statements,  93. 

avoiding  the  use  of  conventional  and  undignified  phrases,  93. 

how  to  meet  interruptions  by  the  court,  181. 

order,  arrangement  and  peroration,  196. 

cultivation  of  the  power  of  speech,  199. 

imitation  and  affectations  of  speech,  201. 

appropriate  physical  gestures  and  facial  expression  in  speaking,  203. 
ELOQUENCE.    See  Elocution. 

force  of  eloquence  in  defendant's  opening  speech,  35. 

appeals  to  passion  or  prejudice,  85. 

temperate  reply  versus  earnest  appeal,  in  closing  address  for  the 
state,  104. 

oratory  before  the  jury.  186. 

value  and  re<iuisites  of  forensic  eloquence,  187. 

genius  or  hard  work  as  a  requisite  to  attaining  superiority  a.-?  a 
forensic  speaker,  188. 

mental  absorption  and  concentration  as  necessary  to  attaining 
superiority  as  a  public  speaker,  191. 

the  value  of  a  personal  inquisition  in  preparing  an  address,  192. 

how  to  prepare  to  meet  an  attack,  194. 

discussion  of  adverse  authorities,  195. 

order,  arrangement  and  peroration,  196. 


INDEX  287 

I  The  references  are  to  sections.] 
ENTHUSIAST, 

enthusiasm  as  a  cardinal  requisite  to  success  at  the  bar,  21. 
ERRORS, 

proper  assignment  of  jrrors  in  advocate's  brief,  175. 
ETHICS, 

as  to  rules  of  ethics  regulating  compensation  and  advertising  by 

lawyers,  see  Compensation  and  Advertising. 
proper  and  improper  questions  to  be  asked  on  examination,  43. 
personal  attack  on  opponent  or  his  counsel,  78. 
general  code  of  ethics,  206. 
code  of  legal  ethics.  208. 
inviolability  of  the  code  of  ethics,  209. 

to  what  extent  professional  conduct  is  affected  by  the  code,  211. 
methods  of  enforcing  the  code  of, ethics,  213. 
general  considerations  determining  the  advocate's  relation  to  the 

state,  214. 
general  considerations  determining  the  advocate's  relation  to  the 

court,  216. 
attitude  and  conduct  of  advocate  in  the  presence  of  the  judge  and 

court,  218. 
attitude  of  the  advocate  towards  his  own  and  opposing  witnesses, 

220. 
should  the  advocate  practice  in  a  court  in  which  the  judge  is  his 

near  kinsman,  222. 
the  impersonality  of  the  advocate  before  the  court,  225. 
the  supremacy  of  the  client's  interest  as  determining  the  advocate's 

conduct,  227. 
4s  truth  a  higher  obligation  than  the  interests  of  the  advocate's 

client.  228. 
.right  of  advocate  to  defend  one  whom  he  believes  to  be  guilty,  231. 
whether  an  advocate  should  become  a  party  to  a  fraud  or  maintain 

harassing  or  oppressive  litigation,  232. 
what  methods  or  influences  are  improper  for  an  advocate  to  use  in 

attaining  the  end  desired,  234. 
general  considerations  determining  the  advocate's  relation  to  his 

profession,  235. 
what  attitude  should  be  observed  by  advocate  to  opposing  counsel, 

236. 

EVIDENCE, 

arranging  and  marshalling  the  evidence  before  trial,  0. 
answering  exaggerated  or  improbable  evidence,  37. 
order  of  time  to  be  observed  In  eliciting  evidence,  45. 
cautioning  witnesses  about  rules  of  tvldence,  47. 
seizing  opportunities  offered  by  the  cross-examination  to  Introduce 
matter  otherwise  Inadmissible,  68. 


288  INDEX. 

EVIDENCE— Continued. 

dealing  with  the  effect  of  the  testimony,  not  the  testimony  itself,  80. 

importance  to  be  attached  to  the  probabilities  of  the  evidence,  83. 

order   and   arrangement  of  evidence  for  the  state  in  a  criD)inal 
prosecution,  97. 

overlaying  a  prosecution  with  too  much  evidence,  97. 

police  testimony  not  to  be  implicitly  relied  upon,  99. 

so  marshalling  the  evidence  as  to  concentrate  attack  on  main  de- 
fenses of  accused,  100. 

methods  of  objection  to  evidence  by  defendant  in  a  criminal  prose- 
cution, 112. 

explaining  away  difficult  and  awkward  points  in  the  evidence  in 
closing  address  for  the  defense,  120. 
EXAGGERATION, 

answering  exaggerated  or  improbable  evidence,  37. 

accuracy  and  exaggeration  in  the  summing  up,  74. 
EXAMINATION. 

See  Direct  Examination. 

See  Re-examination. 

See  Ckoss-Examination. 

F. 

FALSE  REPRESENTATIONS, 

misstateuients  and  false  representations  by  defendant  in  opening 
statement,  36. 
FORENSIC  ELOQUENCE.    See  Eloquence. 
FRAUD. 

whether  an  advocate  should  become  a  party  to  a  fraud  or  maintain 
harassing  or  oppressive  litigation,  232. 

G. 

GESTURES, 

appropriate  physical  gestures  and  facial  expression  in  speaking.  203. 
GOOD  TEMPER, 

good  temper  of  the  cross-examiner,  64. 

H. 

HANDWRITING, 

the  handwriting  expert  as  a  witness,  145. 
HARASSING  LITIGATION, 

whether  an  advocate  should  become  a  party  to  a  fraud  or  maintain 
harassing  or  oppressive  litigation,  232. 
HOSTILITY, 

prejudice  and  other  hostile  mo::ives  on  the  part  of  the  witness  to 

emphasized  on  cross-examination,  56. 
cross-examination  of  evasive  and  hostile  witnesses,  61. 


INDEX.  289 

HUMAN  NATURE, 

knowledge  of  human  nature  as  essential  to  the  success  of  the  advo- 
cate, 2. 

knowledge  of  human  nature  in  dealing  successfully  with  a  jury,  2. 

knowledge  of  human  nat'ire  as  necessary  to  proper  cross-examina- 
tion, 50. 

HYPOTHESIS, 

the  importance  of  arriving  at  a  proper  hypothesis,  7. 

I. 

ILLUSTRATIONS, 

ornamentation  and  illustration  in  opening  statement,  20. 

use  of  illustrations  and  conventional  phrases,  84. 
IMPERSONALITY  OF  THE  ADVOCATE, 

stating  personal  belief  as  to  guilt  of  accused  in  opening  case  for  the 
state,  94. 

the  impersonality  of  the  advocate  before  the  court,  225. 
INDEX, 

proper  form  of  index  in  advocate's  brief,  175. 
INDICTMENT, 

how  to  deal  with  a  defective  indictment,  110. 
INTERROGATORIES, 

value  of  interrogatories  as  discovering  opponent's  case,  16. 
IRRITATION, 

irritable  and  unintelligible  questions,  44. 

J. 

JUDGES, 

proper  tactics  in  overcoming  the  preconceptions  of  the  judge,  167. 
JURY, 

knowledge  of  human  nature  in  dealing  successfully  with  a  jury,  2. 

preparation  of  address  to  the  jury,  20. 

nattering  the  jury,  76. 

securing  attention  of  court  and  jury,  76. 

delicacy  of  the  proceeding  to  impanel  the  jury,  154. 

ascertaining  motives  tending  to  inlluence  th«'  jury,  15(). 

calculating  the  value  of  the  evidence  over  the  vcrdlotof  the  jury,  165. 

general  considerations  to  be  observed  in  addressing  the  jury.  181. 

a  temperate  style  before  the  jury,  184. 

how  to  win  the  master  mind  of  the  jur5%  185. 

oratory  before  the  jury,  186. 

L. 

"LAST  WORD," 

value  of  the  "last  word,"  75. 
19 


290  ^    INDEX. 

LAWYER'S  BRIEF.     See  Brief. 
LEADING, 

leading  a  witness,  48. 
LYNCHING, 

unprofessional  conduct  of  advocate  in  advising  a  mob  to  lynch  a 
prisoner,  215. 

M. 

MAGISTRATE.    See  Police  Magistrate. 
MARSHALLING.    See  Arrangement. 
METHODS, 

proper  business  methods  as  essential  to  success  at  the  bar,  21. 

danger  in  wandering  from  the  main  point  of  a  case,  170. 

requisites  and  value  of  oral  argument  in  addressing  the  court,  177. 

discussion  of  principle  versus  the  citation  of  authority  in  address- 
ing the  court,  179. 

how  to  meet  interruptions  by  the  court,  181. 

general  considerations  to  be  observed  in  addressing  the  jury,  181. 

a  temperate  style  before  the  jury,  184. 

how  to  win  the  master  mind  of  the  jury,  185. 

oratory  before  the  jury,  186. 

discussion  of  adverse  authorities,  195. 

danger  of  achieving  a  reputation  as  a  wit,  202. 

appropriate  physical  gestures  and  facial  expressions  in  speaking, 
203. 
METHODS  OF  SPEAKING.    See  Elocution. 
MODERATION, 

moderation  in  opening  statement,  28. 

N. 

NARRATION, 

narration  not  argument  in  an  opening  statement,  24. 

0. 

OFFICE  WORK, 

consultation  and  the  writing  of  legal  opinions  as  lucrative  features 
of  the  counselor's  office  work,  3. 

arranging  and  marshalling  the  evidence  before  trial,  6. 

the  theory  of  a  case  and  its  importance,  7. 

discovering  and  determining  the  legal  outline,  10. 

what  to  do  with  weak  or  dangerous  points  in  the  line  of  battle,  18. 

leading  up  the  law  of  the  case,  19. 
OPENING  STATEMENT, 

See  Plaintiff's  Opening. 

See  Defendant's  Opening. 


INDEX.  291 

OPINIONS, 

consultation  and  the  writing  of  legal  opinions  as  lucrative  features 
of  the  counselor's  office  work,  3. 
ORNAMENTATION, 

ornamentation  and  illustration  in  opening  statement,  26. 

P. 

PLAINTIFF'S  OPENING, 

plaintiff  must  have  confidence  in  his  case,  23. 

narration  not  argument  in  an  opening  statement,  %i. 

anticipating  defendant's  case,  24. 

redundancy  of  expression  in  opening  statement,  25. 

ornamentation  and  illustration  in  opening  statement,  26. 

order  and  arrangement  of  facts  in  opening  statement,  26. 

moderation  in  opening  statement,  28. 

length  of  opening  statement,  30. 

avoiding  argument  in  opening  case  for  the  state,  92. 

avoiding  exaggeration  in  opening  case  for  the  state,  93. 

avoiding  conventional  and  undignified  phrases  in  opening  case  for 

the  state,  93. 
stating  personal  belief  as  to  guilt  of  accused  in  opening  case  for  the 

state,  94. 
interpreting  the  indictment  to  the  jury    in  opening  case  for  the 

state,  94. 
only  facts  bearing  directly  on  the  issue  to  be  stated  in  opening  case 

for  the  state,  95. 
anticipating  the  defense  in  opening  case  for  the  state,  96. 
proper  tactics  in  opening  the  case,  157. 
PLEADING, 

the  theory  of  a  case  and  its  importance,  7. 
the  importance  of  arriving  at  a  proper  hypothesis,  7. 
preparation  of  pleadings — what  are  essential  characteristics,  12. 

POINTS  AND  AUTHORITIES, 

proper  statement  of  points  and  authorities  in  advocate's  brief,  175. 
POLICE  COURTS.    See  Police  Magistrate. 
POLICE  MAGISTRATE, 

the  young  lawyer  before  the  police  magistrate,  106. 

how  far  defense  should  show  its  hand  before  committing  magis- 
trate, 108, 
POLITENESS.    See  Courtesy. 
PREJUDICE, 

prejudice  and  other  hostile  motives  on  the  part  of  the  witness  to  be 
emphasi/.ed  on  cross-examination,  56. 
PREPARATION  FOR  TRIAL, 

discovering  and  determining  the  legal  outline,  10. 


292  INDEX. 

PREPARATIOX  FOR  TRIAL— Continued. 

what  to  do  with  weak  or  dangerous  points  in  the  line  of  battle,  18. 

reading  up  the  law  of  the  case,  19. 

preparation  of  address  to  the  jury,  20. 

determining  the  leading  point  in  the  case,  156. 
PRINCIPLE, 

discussion  of  principle  versus  the  citation  of  authority  in  addressing 
the  court,  179. 
PROOF, 

use  of  plaintiff's  witnesses  to  prove  defendant's  case,  84. 
PROSECUTION.    See  Cuiminal  Prosecution. 

R. 

REDUNDANCY, 

redundancy  of  expression  in  opening  statement,  25. 

unnecessary  repetition  in  examination  of  witnesses,  48. 

verbose  questions  to  be  avoided  in  examining  witnesses,  49. 

repetition  of  evidence  in  chief  on  re-examination,  70. 
RE  -EXAMINATION, 

general  principles,  65. 

dangers  of  re-examination,  66. 

what  questions  to  be  asked  where  the  cross-examination  is  favorable 
to  the  re-examiner,  67. 

re-examination   where  the    cross-examination    is    unfavorable  to 
the  re-examiner,  67. 

seizing  opportunities  offered  by  the  cross-examination  to  introduce 
matter  otherwise  inadmissible,  68. 

re-examination  in   cases  where  character  or  credibility  of  witness 
has  been  attacked,  68. 

pursuing  an  equivocal  reply  of  one's  own  witness  elicited  on  cross- 
examination,  70. 

repetition  of  evidence  In  chief  on  re-examination,  70. 
REPETITION.    See  Redundancy. 
REPLY, 

value  of  the  "last  word,"  75. 

securing  attention  of  court  and  jury,  76. 

flattering  the  jury,  76. 

display  of  self  confidence,  77. 

personal  attack  on  opponent  or  his  counsel,  78. 

effect  of  an  earnest  quiet  manner,  78. 

order  and  arrangement  of  the  reply,  79. 

attacking  opponent's  case  first,  79. 

dealing  with  the  effect  of  the  testimony,  not  the  testimony  itself.  80. 

importance  to  be  attached  to  the  probabilities  of  the  evidence,  83. 

conciseness  in  the  reply,  84. 

use  of  illustrations  and  conventional  phrases,  84, 


INDEX.  293 

REPLY— CONTINUEl, . 

appeals  to  passion  or  prejudice,  85. 
temperate  and  accurate  style,  86. 
peroration,  87. 

adaptation  and  arrangement  of  the  evidentiary  forces   in  closing 
address.  166. 
HETORIC.    See  Elocution. 

S. 
STATEMENT, 

proper  statement  of  the  case  in  advocate's  brief.  174. 
STYLE, 

in  what  style  to  conduct  the  examination  of  witnesses,  58. 
SUMMING  UP, 

general  considerations  as  to  the  summing  up  of  defendant's  case,  72. 

right  to  argue  upon  antecedent  evidence,  73. 

points  of  danger  in  defendant's  summing  up,  73. 

accuracy  and  exaggeration  in  the  summing  up,  74. 

calling  attention  to  absence  of  motive  on  part  of  accused  in  closing 

address  for  the  defense  in  a  criminal  prosecution,  118. 
calling  attention  to  motive  of  prosecuting  witness  in  closing  address 

for  the  defense  in  a  criminal  prosecution,  119. 
explaining  away  dilHcult  and  awkward  points  in  the  evidence  in 

closing  address  for  the  defense  in  a  criminal  prosecution,  120. 
emphasizing  good  character  of  accused  in  closing  address  for  the 

defense  in  a  criminal  prosecution,  121. 
general  considerations  as  to  closing  address  for  the  defense  in  a 

criminal  prosecution,  122. 

T. 

TACT. 

the  meaning  and  value  of  tact,  151. 

tact  in  handling  and  impaneling  th«  jury.  154. 

tact  in  ascertaining  motives  tending  to  intluence  the  jury,  156. 

tact  in  determining  the  leading  point  in  the  case,  156. 

exercise  of  tact  by  counsel  in  not  making  admissions  detrimental  to 
his  client,  164. 

how  to  meet  an  unscrupulous  and  ill-natured  opponent,  168. 
TACTICS, 

the  meaning  and  value  of  tactics,  151. 

proper  tactics  in  opening  the  case,  157. 

proper  tactics  in  calling  witnesses  and   in  what  order  to  call  them, 
159. 

superior  value  of  oral  testimony  to  written  depositions.  161. 

how  to  take  care  of  the  weak  point  in  a  case,  163. 

calculating  the  value  of  the  evidence  over  the  verdict  of  the  jury, 
165. 


294  INDEX. 

TACTICS— Continued. 

proper  tactics  in  securing  tlie  "last  word,'"  165. 

adaptation  and  arrangement  of  the  evidentiary  forces  in  closing 
address,  166. 

proper  tactics  in  overcoming  the  preconceptions  of  the  judge,  167. 

assuming  that  the  court  is  ignorant  of  the  law,  167. 

under  what  condition  an  advocate  profits  by  delay,  168. 

danger  in  wandering  from  the  main  point  of  a  case,  170. 
THEORY, 

the  theory  of  a  case  and  its  importance,  7. 
TIME, 

order  of  time  to  be  observed  in  eliciting  evidence.  45. 
TRIAL.    See  Prepakation  for  Trial. 
TRIAL  AND  PROCEDURE, 

order  of  a  criminal  trial,  88. 

whether  or  not  witnesses  should  be  called  or  case  submitted  oo 
state's  evidence,  117. 
TRUTH, 

is  truth  a  higher  obligation  than  the  interests  of  the  advocate's 
client,  228. 
TRUTHFULNESS, 

cross-examination  for  impugning  the  veracity  of  the  witness,  62. 

V. 

VERBOSITY.    See  Redundancy. 
VERACITY.    See  Truthfulness. 

W. 

WEAK  POINTS.    See  Dangers  of  Advocacy. 
WIT  AND  HUMOR, 

danger  of  achieving  a  reputation  as  a  wit,  202. 
WITNESSES, 

interviewing  and  coaching  witnesses,  14. 

use  of  plaintiff's  witnesses  to  prove  defendant's  case,  34. 

effect  of  defendant  praising  his  own  witnesses,  38. 

cross-examining  one's  own  witness.  46. 

cautioning  witnesses  about  rules  of  evidence,  47. 

leading  a  witness,  48. 

prejudice  and  other  hostile  motives  on  the  part  of  the  witness  to  be 
emphasized  on  cross-examination,  56. 

asking  questions  liable  to  call  forth  adverse  replies,  60. 

cross-examination  for  impugning  the  veracity  of  the  witness,  62. 

re-examination  in  cases  where  character  or  credibility  of  witness 
has  been  attacked,  68. 


INDEX.  295 

WITNESSES— Continued. 

under  criminal  defense  emphasizing  mistakes  of  inaccurate  wit- 
nesses, 113. 

whether  or  not  witnesses  should  be  called  or  case  submitted  on 
state's  evidence,  117. 

the  lying  witness,  124. 

the  flippant  witness,  129. 

the  dogged  witness,  131. 

the  hesitating  witness,  133. 

the  nervous  witness,  134. 

the  cunning  witness,  134. 

the  witness  partly  true  and  partly  false,  135. 

the  stupid  witness,  136. 

the  semi-professional  witness,  137. 

the  oflicial  witness,  138. 

the  policeman  as  a  witness,  139. 

the  truthful  witness,  141. 

the  convict  as  a  witness,  142. 

the  private  detective  as  a  witness,  143. 

the  handwriting  expert  as  a  witness,  146. 

the  medical  witness,  147. 

the  vanity  of  witnesses,  149. 

what  witnesses  should  be  called  and  in  what  order,  159. 


UC  SOUTHERN  REGIONAL  UBRARY  FAaUTY 


A     000  689  488     5 


